Thompson v. State

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In the Circu it Court for B altimore C ity Case No. 18809133-36 IN THE COURT OF APPEALS OF MARYLAND No. 87 September Term, 2005 JAMES A. THOMPSON v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinio n by Rak er, J. Filed: October 24, 2006 In this case, we are called upon to decide two issues relating to an Order issued by the Circuit Court for Baltimore City granting appellant s petition for postconviction DNA testing pursuant to Md. Code (2001 , 2006 C um. Su pp.), § 8-201 of the Criminal Procedure Article.1 The Order at issue states as follows:2 It is FURTHER OR DERED that the Maryland Medical Examiner s Office, or the appropriate State agency in possession of the following, shall release a portion of th e followin g forensic samples directly to Reliagene Technologies, Inc., 5525 Mounces Street, Suite 101, New Orleans, LA 70123 1) Portions of all slides taken from vaginal or rectal swabbings or washings relating to the autopsy of [the victim] conducted on August 3, 1987; and 2) The cut-off blue jeans, Property number 33870. It is FURTHER OR DERED that the Maryland Medical Examiner s Office, or appropriate State agency, retain a sufficient portion of the evidentiary samp les for future confirmatory DNA testing; It is FURTHER ORDERED that Petitioner is precluded from relying on any DNA test results involving any evidence samples of which Reliagene Technologies, Inc. has failed to preserve a sufficient portion thereof for future confirmatory DNA testing; and It is FURTHER ORDERED that the Maryland Office of the Public Defender shall pay initially the designated laboratory 1 Unless otherwise indicated, all subsequent statutory references herein shall be to the Criminal Procedu re Article, Md. Cod e (2001, 2006 C um. Supp.). 2 This case is before us on a direct appeal pursuant to § 8-201(j)(6), which provides that [a]n appeal to the Court of Appeals may be taken from an order entered under subsec tion (c) . . . o f this sec tion. all reasonable expenses incurred during the testing of the DNA sample s. First, we determine w hether the trial court abused its discretion in ordering the retention of samples of the materials to be tested pursuant to the Order sufficient to permit retesting. We shall vacate that portion of the Order and hold that the Circuit Court abused its discretion by ordering such retention without first determining whether it was scientifically feasible given the nature of the samples to be tested under the Order. Second, we decide whether the trial court erred by ordering the results of the testing be precluded from use in further proceedings if samples f or retesting are not retained . We shall also vacate the portion of the Order that prohibits the future use of the DNA test results. I. Appellant James A . Thomp son was convicted by a jury in the Circu it Court for Baltimore City on October 13, 1988 of first degree felony murder, first degree rape, burg lary, and carrying a we apon w ith intent to injure. He was sentenced to life imprisonment for the first degree murder conviction, and a term of three years incarceration, to be served consecu tively for the carrying conviction, with the remaining charges merged for sentencing purposes. On direct appeal, the Court of Special Appeals affirmed in an unreported opinion. Before that Court, appellant s o nly argumen t was that the trial court com mitted rever sible error by admitting into evidence expert testimony that a pubic hair found on the back of the -2- victim matched his pub ic hair. Appellant s contention was that the microsco pic comparison method used by the State s expert was less reliable than DNA testing, and that this relative lack of reliability rendered expert testimony base d on micro scopic comparison inadmissible. The Court of Special A ppeals aff irmed, con cluding that microscopic comparison was generally accepted within the relevant scientific community, and hence expert testimony based upon such a method is admissible under Reed v. Sta te, 283 Md. 374, 391 A.2d 364 (1978). In the Circuit Court for Baltimore City, appellant, through counsel, filed a petition for postconviction DNA testing pursuant to § 8-201.3 The Sta te opposed appellant s petition. In his petition, appellant requested DNA testing of evidence in the possession of the State relating to appellant s conviction. He averred that his counsel had been informed by the Maryland Medical Examiner s Office that it had possession of the cytology slides containing some of this evidence, which consisted of semen taken from vaginal and/or rectal swabs of the victim. Appellant further alleged that identity was an issue in his trial, that DNA testing of the evidence in the possession of the State could determine whether appellant was identified correctly at trial as the perpetrator, and that this evidence had not previously been subjec t to DN A testin g. 3 His petition, captioned as a M otion for Release of Evidence to Conduct DNA Anaylsis , specifically referenced § 8-201 as a basis for the motion, as well as an independent constitutiona l right to DNA testing. Appellant has not raised this constitutional argumen t before us , and we th erefore do not addres s it. -3- On November 8, 2004, the Circuit Court held a hearing on the petition. At the hearing, appellant requested testing of two additional items of evidence: material from a pair of blue jeans owned by appellant that contained a blood stain that matched the blood type of the victim, and the cytology slides containing the pubic hairs taken from appellant for microsco pic comparis on with the pubic hairs found on the victim at appellant s trial. After requesting and receiving additional briefing from the parties, on August 31, 2005, the Circuit Court denied appellant s petition. In its Order denying the petition, the Circuit C ourt explained that it was denying the petition because appellant had failed to meet his burden under § 8-201(c)(2) to establish that the requested DNA test employs a method of testing genera lly accepte d withi n the rele vant sc ientific c omm unity. On September 15, 2005, appellant noted a timely appeal to this Court pursuant to § 8-201(j)(6), and, on the same day, filed a motion for reconsideration in the Circuit Court. On November 17, 2005, the Circuit Court granted appellant s motion for reconsideration, vacated its Order of August 31, 2005, and granted in part appellant s petition for DNA testing. In its memora ndum o pinion, the Circuit Court first stated that appellant had now satisfied the Court that his proposed method of testing met the req uirements of § 8-201(c)(2). The Circuit Court explained its reasoning for concluding that appellant s request for testing of the semen samples taken from the victim and the blood-stained blue-jeans satisfied the -4- requireme nts of § 8-201(c)(1), 4 but that appellant s requ est for testing o f his pubic h air comparison sample did not meet these requirements. Notably absent in the Circuit Court s opinion was any discussion of the provisions in its Order requiring retention of samples sufficient for future confirmatory testing, and prohibiting appellant from relying on the results of the testing in future proceedings in the event that suf ficient samples for future confirmatory testing are not preserved. Pursuant to § 8-201(j)(6 ), appellant no ted a timely app eal to this Co urt. II. We first address the aspect of the Orde r prohibiting a ppellant fro m using th e results of the ordered DN A testing if samples suf ficiently large to permit confirmatory retesting are not retained. A ppellant pre sents two a rgumen ts. First, appellan t claims that [t]h ere is nothing in § 8-201 that justifies this requirement. Second, appellant argues that, because the State is permitted in criminal cases to present scientific evidence against a criminal defendant based on destructive testing, a petitioner challenging his conviction under § 8-201 should have a similar right to make use of the resu lts of a destru ctive test to cha llenge his conviction in a postcon viction proc eeding. Th e State replies that the plain language of § 8- 4 Section 8-201(c)(1) requires a court hearing a petition under § 8-201 to find that a reasonab le probability exists that the DNA testing has the scientific potential to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing before it orders DNA testing. -5- 201(e) reserves to the discretion of the circuit court the particular conditions of the release of DNA evidence for testing, and tha t the prohibition on the future use of the te st results if there is no retest sample available is nothing more than such a condition. On the second issu e, appellant a rgues that the court Ord er that the State agencies in possession of the evid ence to be tested retain a s ufficient po rtion of the e vidence to permit retesting is unwork able because those agencies do not have the required scientific expertise to determine the size of the sample necessary to permit retesting. The State responds that appellant s contentions concerning the inability of the State agencies to determine how much evidence to retain to permit retesting have not yet been addressed by the Circuit Court, as they were raised for the first time in appellant s December 6, 2005 motion for reconsideration. Consequently, the State argues, there is no b asis on this rec ord for this Court to disturb the e vide nce r eten tion prov ision in the Cir cuit C ourt s Order . Additio nally, the State argues that appellant s appeal is not properly before this Court b ecause a p arty only has a right to appeal an adverse decision of a lower court, and the Circuit Court s Order was not advers e to appellan t because it granted appellant s petition for DNA testing. III. As a preliminary matter, we dispatch with the State s argument that the appeal is not properly before us. In Administrator, Motor Vehicle Administration v. Vogt, 267 Md. 660, 664, 299 A.2d 1, 3 (1973), we observed that [g]enerally, a party cannot appeal from a -6- judgment or order which is favorable to him, since he is not thereby aggrieved. See also Wright v. Baker, 197 Md. 315, 318, 79 A.2d 159, 161 (1951). This principle, however, does not prevent a party from challenging an aspect of a lower co urt judgme nt or order th at results in the party receiving less than the full relief it sought below, even though the judgment or order is otherwise in accord with the relief the party requ ested. See Mugford v. Mayor and City Council of Baltimore, 185 Md. 266, 269, 271-72, 44 A.2d 745, 746-47 (1946) (holding that taxpayers w ho sough t to have a co ntract betw een Baltim ore City and a union declared void, and further sought to enjoin the City from deducting union dues from employee wages and remitting them to the union as provided for in the contract, could challenge on appeal the portion of the trial court s decree that expressly permitted voluntary collection of union dues by the city, despite the f act that the decree declared the contract invalid and otherwise enjoine d the city a nd the u nion fr om c arrying ou t the und ertaking s of [th e] contr act ). The Circuit Court s Order, although it ordered the release of the cytology slides and blue jean samp les for DN A testing, did not do s o unco ndition ally. The release of these items for testing was conditioned on the retention by the relevant state agencies of samples sufficiently large to permit retesting, and prohibited appellant from usin g the test results in future proceedings challenging his convictions if this condition was not met. Appellant s petition for DNA testing requested testing of these items simpliciter, without mention of a -7- retention condition of the sort imposed on the testing by the Circuit Court. Appellant may challenge on appeal these conditions imposed on the testing.5 IV. Turning to the merits, we address first whether the Circuit Court properly ordered retention of samples sufficient for retesting on the record before it. Section 8-201(e), Contents of Order, provides as follows: (e) If the court orders DNA testing under subsection (c) of this section, the court in its order may issue orders the court considers appropriate, including designation of any of the following: (1) the specific evidence to be tested; (2) the method of testing to be used; (3) the preservation of some of the sample for replicate testing and analysis; (4) the laboratory where the testing is to be performed, provided that if the parties cannot agree on a laboratory, the court may approve testing at any laboratory accredited by the American Society of Crime Lab oratory Directors (ASCLA D), the Laboratory Ac creditation Board (LAB), or the National Forensic Science Technology Center; and (5) release of biological evidence by a third party. 5 This Court has be en advised by letter from Th ompson s counsel dated September 28, 2006 that Baltimore City Circuit Judge Allison granted a request for testing by Thompson s co-defenda nt, James O wens, on May 16, 20 06. The O rder granting the request d id not include any of the testing conditions objected to an d appeale d by Thom pson. Th e Circuit Court s Order in Thompson remains in e ffect and the appea l before this Court has not been dismissed. -8- Because § 8-201(e)(3) expressly permits a court ordering DNA testing under § 8-201 to order the preservation of some of the sam ple for replic ate testing and analysis, the Circuit Court had the pow er to enter a re tention orde r. The que stion, rather, is w hether the C ircuit Court abused its d iscretion in ord ering retentio n on the ba sis of the reco rd before it. The Circuit Court acted prematurely in ordering retention of samples sufficient for retesting on the record before it. In our view, § 8-201(e), although it provides for the preservation of some of the sam ple for replic ate testing, only perm its a circuit court to enter an unconditional preservation order if the court has determined that preservation of some sample for replicate testing and analysis is possible. In this case, there was no basis on the record before the cou rt to con clude th at retentio n of sa mples w as poss ible. Section 8-201(c), Findings Requiring DNA T esting, provides as follows: (c) Subject to subsection (d) of this sec tion, a court sh all order DNA testing if the co urt finds that: (1) a reasonab le probability exists that the DNA testing has the scientific potential to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing; and (2) the requested DNA test employs a method of testing generally accepted within the relevant scientif ic com munity. Subsection (c), by stating that a court shall order DNA testing if it makes the findings specified in (c)(1) and (c)(2), manifests a legislative intent in favor of DNA testing of potentially exculpatory physical evidence. The Circuit Court s Order frustrates this intent. Even assuming arguendo that the State agencies in possession of the evidence to be tested -9- under the Orde r possess the requisite scie ntific expertise to determine whether nondestructive DNA testing of the evidence is possible,6 the Circuit Court s Order requiring these agencies to retain a sample s ufficient fo r retesting w ould requ ire the State ag encies in possession of the evidence to retain all of the evidence in the event that there was only enough material for a single test. Thus, in the event that the only way the evidence could be subjected to DNA testing is by destructive testing,7 the Circuit Court s Order would preclude any testing of the evidence, contrary to the intent man ifested by the plain language of § 8-201(c). Although we rest our holding on the plain language of the statute, our holdin g is further supported by the primary purposes behind the enactment of § 8-201 to facilitate the establishment of claims of actual inno cence for serious crimes. Interp reting § 8-2 01 to permit a circuit cour t, once it has m ade the pre requisite find ings unde r § 8-201(c ), to enter a DNA testing order that could have the effect o f potentially ma king DN A testing im possible is, in our view, inconsistent with this purpose, because it could result in the continued incarceration of an actually innocent person whose innocence might be established in the absence of such an order. 6 Appellant disputes whether these agencies possess the requisite scientific expertise to make these determinations. As resolution of this question is not necessary to our disposition of the case, and the record before us does not provide an adequate basis to answer this question , we shall no t address it. 7 By destructive testing, we m ean testing that would d estroy the entire sample. We use de structive testing intercha ngeab ly with c onsum ptive tes ting. -10- Examination of the legislative history of § 8-201 reveals the General Assembly s concern with actual innocence. Section 8-201 was enacted in 2001. See 2001 Md. Law s, Chap. 418, S.B. 694.8 The Revised Fiscal Note for Senate Bill 694 of 2001 observed as follows: The push for postconviction DNA testing gained momentum with the creation of the Innocence Project at Benjamin Cardozo School of Law in New York in 1992. The Innocence Project was founded to help wrongly convicted prison inmates prove their innocence through DNA testing. According to news reports, 76 prisoners nationwide, including eight inmates on death row, have been released from prison because of postconviction DNA testing that has exonerated the person who was co nvicted . Furthermore, the General Assembly s rejection of a requirement that DNA testing not have been available at the time of trial supports the view that the legislative intent in enacting § 8-201 was to provide a mechanism for exoneration of the actually innocent. One witness before the Maryland Senate Committee on Judicial Proceedings testified in support of S.B. 694 that such a requirement, which was included in other DNA testing bills introduced in the General Assemb ly in 2001, is inconsistent with the goal of ensuring that the actually innocent are exonerated, stating as follows: S.B. 15 establishes a thresh old requirem ent for pos tconviction DNA testing that the technology for such testing was not availab le to the petitioner at the trial. S.B. 84 and S.B. 8 Section 8-201 has been subsequently amended by the General Assembly on several occasions. In the conte mporan eously filed companion case of Blake v. State, ___ Md. ___, ___ A.2d ___, No. 88, Sept. Term 20 05 (filed ____ __ , 2006), we provide more discussion of the le gislative history of § 8-20 1. Id. at slip op. ____. -11- 699 contain a variation on that theme they require that the evidence was not previously tested for reasons beyond the contro l of the p etitioner . Both of these formulations create an unjustified h urdle to DNA testing. There are cases in which DNA testing is, in a scientific sense, available to a defendant, but he does not obtain D NA te sting at th at time . . . . ****** Any such threshold is an unnecessary procedural default rule if the defen dant misse d his opportunity, too bad. But that logic does not explain why the state should co ntinue to incarcerate or even ex ecute an inn ocent ma n who f ailed to obtain testing previously for whatever reason. Testimony of Ron ald Weich , Counse l to the Justice Project, before the Senate Judicial Proceedings Comm ittee (Feb. 22 , 2001). Th e Genera l Assemb ly s ultimate rejection of such a requir emen t provid es evid ence o f its con cern w ith actua l innoce nce. Our holding should not be misconstrued as disapprov ing genera lly of the practice of retention of DNA samples for potential retesting when doing so is feasible. To the contrary, we agree with the view expressed by the Minnesota Supreme Court, and by several commentators, that retention o f samples for potentia l future retestin g is advisab le when it is possible. See State v. Traylor, 656 N.W.2d 885, 898-900 (Minn. 2003) (approving of testing policy of State Burea u of C riminal A pprehe nsion w hich re quires th at, when pos sible, a portion of the evidence sample be retained at the . . . laboratory and if a test precludes any further testing, the defense must receive reasonable notice and an opportunity to have a qualified expert obser ve th e test. ); D NA Adv isory Board Standard 7.2 (providing that -12- [w]here possible, the laboratory shall retain or return a portion of the evidence sample or extract ); Ame rican B ar Asso ciation, C RIMINAL JUSTICE S TANDARDS ON DNA E VIDENCE, Standard 3.4(a) (approved by the American Bar Association House of Delegates August 7, 2006) (counseling that [w]hen possible, a portion of the DNA evidence tested and, when possible, a portion of any extract from the DNA evidence should be preserved for further testing ); Nation al Rese arch C ouncil, T HE E VALUATION OF F ORENSIC DNA E VIDENCE 88 (1996) (recommending that [w]h enever fe asible, foren sic samples should be divided into two or more parts at the earliest practicable stage and the unuse d parts retaine d to permit additional tests ); Nation al Institute of Justice, National Commission on the Future of DNA Evidence, P OSTCONVICTION DNA T ESTING: R ECOMMENDATIONS FOR H ANDLING R EQUESTS 24, 63 (Se pt. 1999 ), http://www.ncjrs.org/pdffiles1/nij/177626.pdf, (recommending that samples be split wh enever po ssible before and during the testing process). The rationale for this preference is manifest: the preservation of a sample for retesting prov ides a mea ns to challenge the reliability of an adverse test result by attempting to replicate the result in a subsequent test in the event there is a dispute as to the adequacy of the testing procedures emplo yed in the initial test. The desirability of retention of samples for future retesting does not, however, justify the categorical, u ncondition al, exclusion of the resu lts of destructive testing. Th e party seeking to challenge an adverse destructive DNA test result is not necessarily left without the means to do so sim ply because the test was destructive. As we recently observed in Young -13- v. State, 388 Md. 99, 879 A.2d 44 (20 05), a defendant is able to challenge adverse DNA test results offered by the State in other w ays besides confirmatory retesting, stating as follows: A defendant is not without recourse when the State s expert identifies the defendant as the source of the DNA evidence. The defendant has the op portunity, and the right, to challenge the expert s conclusion in cross-e xamin ation. See Md. R ule 5-703(c) (stating that [t]h is Rule does not limit the right of an opposing party to cross-examine an expert witness or to test the basis of the expert's opinion or inference ). Md. Code (1973, 2002 Repl. Vol., 2004 Cum . Supp.), § 10-915 of the Courts and Judicial Proceedings Article provides additional means for the defendant to challenge the expert s testimony that the defendant was the source of the DNA evidence. Under § 10-915(c), the party seeking to introduce the DNA evidence must, upon written request at least thirty days prior to the proceeding, provide the other party with a statement setting forth the genotype data and the profile frequencies for the databases utilized. § 10-915(c)(2)(v). The defendant may cross-examine the expert on the statistics and the expert s conclusions based on those statistics. Add ition ally, the defendant can challenge the weight of the DNA evidence, by, for examp le, questioning the expert about laboratory errors and co ntamin ation. See § 10-915(c)(2 )(i) and (ii) (requ iring the party intro ducing DNA profile eviden ce, upo n timely w ritten req uest, to produce laborato ry results an d notes ). Id. at 121, 879 A.2d at 57. Our observations in Young apply with sim ilar force to postconviction DNA testing. Section 8-201(h)(2) requires a court to open or reopen postconviction proceedings in the event of a favorable te st result to a § 8-20 1 petitio ner. See also Md. Rule 4-401(b) (providing that, in the even t of a test result that is favorable to a § 8-201 petitioner, if the petitioner has not previously petitioned for postconviction review, the petition for -14- postconviction DNA review sh all be treated as a petition under the U niform Post Conviction Procedure Act). Once a postconviction proceeding has been initiated under § 7-102 or reopened under § 7 -104, the pe titioner is entitled to a hearing. § 7-108(a); see Md. Rule 4406(a). At such a hearing, the State would have the opportunity to challenge the conclusions of the postco nviction pe titioner s DN A expe rt just as a crimin al defend ant wou ld have to challenge the conclusions of a DNA expert witness offered by the State at trial. See Md. Rule 4-406(c) (evidence at hearing on postconviction petition under Uniform Post Convicti on Act ma y be presented by aff idav it, deposi tion, oral testim ony, o r in any other form as the court finds convenient and just ). Furthermore, under § 8 -201(e), a circuit court may, when ordering destructive DNA testing, require in its order that the test be undertaken in such a way that the items enumerated in CJP § 10-915(c)(2)(i)-(v) are preserved so that the State may use them in fu ture postconv iction proce edings to ch allenge the v alidity of the DNA test results, and may also, when appropriate, order mutual observation or recording of the DNA test itself. Fina lly, for guidance on remand, we note th at our holdin g does no t leave the C ircuit Court without recourse to fashion testing orders that embody a preference for preservation of retesting samples, if doing so is feasible, an d that protec ts the interests of the State in having the ability to challenge the reliability of the testing results in subsequent postconviction proceedings if consumptive testing is the only means of testing available and the resu lts of suc h testing are fav orable to a § 8-20 1 petitio ner. -15- The issue of the appropriate procedures to follow when destructive testing is necessary was addressed by the Amer ican Bar A ssociation C riminal Justice Section s re cently approved C RIMINAL J USTICE S TANDARDS ON DNA E VIDENCE. Specific ally, Standard 3.4, Consumptive Testing, provides in relevant part as follows: (d) Before approving a test that entirely consumes DNA evidence or the ext ract f rom it, the attor ney fo r any d efendant against whom an accusatorial instrument has been filed, or for any other person who intends to conduc t such a test, sho uld provide the prosecutor an opportunity to object and move for an appropriate court order. (e) If a motion objecting to consumptive testing is filed, the court should consider ordering procedures that would permit an independ ent evaluation of the analysis, including but not limited to the presence of an expert representing the moving party during evidence preparation and testing, and videotaping or pho tograp hing th e prepa ration an d testing . Although these provisions address pre-conviction destructive DNA testing specifically, these recommendations should be accorded equal weight with respect to postconviction DNA testing, particularly the recommendations o f Standard 3.4(e). A circuit court entering a testing order under § 8-201 may address the concerns about measures to ensure that th e State has a n adequa te basis to challenge the testing procedures employed in a destructive test. When o rdering D NA testin g pursuan t to § 8-201 (c), a circuit court may, consistent with § 8-201(e), order the testing laboratory to retain samples sufficiently large for confirmatory retesting if the testing laboratory determines that this is possible, and, if not possible, require the testing labo ratory to refrain from performing the -16- destructive test and to inform the court or the State s Attorney that destructive testing is the only means of testing av ailable. The court may the n conside r a request fr om the S tate to modify its initial testing orde r to put in plac e further saf eguards in the testing pro cess to ensure that the State has the necessary means to challenge the testing results if it believes that there is some defect in the testing procedure. V. We turn to the second issue: whether it was appropriate for the trial court to order that the results of the testing be pre cluded fro m use in fu rther procee dings if samples for retesting are not retained. In light of our holding that the Circuit Court abused its discretion by ordering prematurely the retention of retesting samples, w e vacate this p rovision. Th is provision presume s that the sam ple to be tested is large enou gh to retain a portion of it. As we have indicated, this conclusion is not supported by the record in this case. In the event that the Circuit Court determines that a retention order is appropriate, we make the following observations for guidance. Although neither § 8-201 nor the Maryland Rules contain any provisions that address expressly the power of a circuit court to enforce testing orders entered unde r § 8-201(c), we note th at a circuit cou rt has inheren t authority to take appropriate steps to en forc e a testing orde r entered under § 8 -201 (c), a nd, c onse quently, to provide fo r appropria te sanctions f or nonco mpliance with such an order. In Wynn v. State, 388 Md. 42 3, 879 A .2d 1097 (2005), w e recently discussed the inherent powers of the courts. -17- There, we noted that [s]ince the early years of the Republic, Maryland courts have recognized the inherent authority of the courts. Id. at 431, 879 A.2d at 1102. Reviewing our prior ca ses discussin g the inhere nt authority of c ircuit courts, we concluded that [t]he concept of inheren t authority . . . is grounde d in the und erstanding that courts must possess certain pow ers in order to function as courts. Id. at 43 3, 87 9 A.2d at 110 3. Simila rly, the United States Supreme Court, in Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S. Ct. 2455, 65 L. Ed. 2d 488 (1980), observed that [t]he inherent powers of . . . courts are those which are necessary to the exercise of all others. Id. at 764, 100 S. Ct. at 2463 (quoting United States v. Hudson, 11 U.S. (7 Cranch ) 32, 34, 3 L. Ed. 259 (1812)). Courts have inherent judicial power to impose sanctions for violations of court orders. Violation of discove ry orders is one ex ample . See, e.g., Carroll v. Jacques Admiralty Law Firm, P.C., 110 F.3d 290, 293 (5th Cir. 1997) ; Combs v. Rockwell Int l Corp., 927 F.2d 486, 488 (9th Cir. 199 1); Buffington v. Baltimore Cty., Md., 913 F.2d 113, 13 2 n.15 (4th Cir. 1990). Furthermore, many courts have recognized that the in herent pow er of a cou rt to impose sanctions is not limited to civil discove ry, but extends to criminal disc overy as we ll. See, e.g., Taliaferro v. State, 295 Md. 376, 390, 456 A.2d 29, 37 (1983) (holding that trial court had power to exclude alibi evidence as a sanction for the defendant s failure to disclose this evidence in accordance with a discovery rule, despite the fact that the discovery ru le applicable at the time did not expressly provide for a sanctio n of ex clusion ), cert. denied, 461 U.S. 948, 103 S. Ct. 2114, 77 L. Ed. 2d 1307 (198 3); State v. Gu thrie, 631 N.W.2d 190, 195 -18- (S.D. 2001) (holding that a tr ial court has th e inherent p ower to f ashion an appropriate sanction for discov ery violations in c riminal case s ); State v. Blenden, 748 So.2d 77, 88-89 (Miss. 1999); State v. Clem ente, 353 A.2d 723, 729 (Conn. 1974); People v. Pearson, 569 N.E.2d 1334, 1338 (Ill.App. 2 Dist. 1991). Courts also have supervisory power to exclude evidence under c ertain cir cumsta nces. See, e.g., Crane v. Dunn, 382 Md. 83, 100, 854 A.2d 1180, 1190 (2004) (observing that Md. Rule 5-403 codifies the inherent powers of trial judges to exercise d iscretion to exclude releva nt, probative evidence that is unduly prejudicial, confusin g, or time-co nsuming ); United States v. Colomb, 419 F.3d 292, 299-300 (5th Cir. 2005). By analogy, then, we conclude that a circuit court has inherent power, in the proper case, to sanction a v iolation of a valid DN A testing order entered u nder § 8-201(c). A circuit court s power to impose such sanctions, however, is not boundless. The ruling of the Circ uit Court in the case sub judice is the equivalent of the creation of an exclusionary rule because it categorically precludes the use of the test result in advance of an actual violation of the retention provision in the court s DNA testing Order. In the absence of statute or a rule promulgated by this Court, the Circuit Court does not have the inherent power to create an exclusionary rule of evidence under a statute that itself does not have an exclusionary rule.9 See Wynn, 388 Md. at 443-44, 879 A.2d at 1109 (holding that 9 Although the State contends that the C ircuit Court had statutory authority under § 8-201(e) to fashion an exclusionary rule for a violation of an order requiring retention of samples for retesting, we are not persuade d. The Sta te argues that th e creation o f such a ru le is sanctioned by § 8-201(e) bec ause it falls under the class of o rders the court considers appropriate that a circuit court may order when ordering DNA testing under § 8-201. We (contin ued...) -19- the inherent autho rity of a court to co ntrol its docke t did not em power a circuit court to impose dismissal of charges as a sanction against the State for its violation of a scheduling order); United States v. Payner, 447 U.S. 727, 735, 100 S. Ct. 2439, 2446, 65 L. Ed. 2d 468 (1980) (holding that the superv isory power o f courts do es not perm it lower fed eral courts to fashion an exclusionary rule to exclude evidence illegally seized from a third party); State v. Jackson, 570 A.2d 1115, 1117 (R.I. 1990) (per curiam). The court in Jackson stated as follows: A fortiori a Federal District Court has no power to create an exclusionary rule based upon a Rhode Island statute th at in itself provides no such exclusionary rule. This court in the exercise of its constitutional super visory powe r over all trial cou rts undoub tedly has such p ower. H oweve r, as the Un ited States Supreme Court points out in Payner, this power should be exercised with great restraint after balancing carefully the societal interests involved. We believe that an exclusiona ry rule is strong medicine ind eed since it d eprives the trie r of fact in many instances o f highly relevant and reliable evidence. We believe that the Ge neral Asse mbly of Rh ode Island is quite capable of establishing an exclusionary rule w hen it desires to do so. The statute under consideration here does not create an exclusionary rule but provides for a fine of $100 . We dec line to exercise our superv isory function to create an exclusio nary rule where the Leg islature h as seen fit not to do so. 9 (...continued) interpret this language, however, only to permit a circuit court to enter further orders pertaining to the DNA testing process. The purpose clause of 2003 Md. Laws, Chap. 240, which added this language to § 8-201(e), states that the purpose of the Act was to authoriz[e] a court to m ake certain o rders regard ing DNA testing when it orders DNA testing. Id. See also S tevens v. Rite -Aid, 340 Md. 555, 568 n.16, 667 A.2d 642, 648 n.16 (1995 ) (inferri ng legis lative inte nt from purpo se claus e). -20- Id. at 1117 (internal citations omitted). We agree with Jackson that trial courts do not have inheren t powe rs to fas hion ex clusion ary rules. That a circuit cour t may not create an exclusio nary rule to sanc tion a violation of a DNA testing order entered pursuant to § 8-201(c) is not to say that a circuit court is powerless to impose a sanction for such a violation. We note, however, that preclusion of the use of the D NA test re sults is an extre me and d rastic sanction under this statute. Applied to a postconviction DNA testing petition, a sanction of exclusion of the results of DNA testing in future pro ceedings is tantamount to a sanction of dismissal, since the raison d etre of such a petition is to obtain such testing results for use in future pro ceedings. It is w ellsettled that the s anction of dism issal sho uld be u sed spa ringly, if at a ll. See, e.g., United States v. $8,221,877.16 in U.S. Currency, 330 F.3d 141, 161 (3d Cir. 2003) ( [T]he sanction of dismissal is disf avored ab sent the mo st egregiou s circumstan ces. ); United States v. O Kee fe, 825 F.2d 314, 318 (11th Cir. 1987) ( [D]ismissal of an indictment for prosecutorial misconduct is an extreme sanction which should be infrequently utilized. (internal quotations omitted)). Thus, a circuit court hearing a postconviction DNA testing petition should impose a sanction of exclusion o nly in the most e xtreme ca ses, and in n o case sho uld it impose such a sanction in advance of an actual violation of an order. JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSIS TENT WITH THIS OPINION. COSTS TO BE PAID -21- BY THE M A Y O R AND COUNCIL OF BALTIMORE. -22- C ITY

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