Anthony Dove v. State Of Md..
| Decision Date | 21 September 2010 |
| Docket Number | No. 118, Sept. Term, 2009.,118, Sept. Term, 2009. |
| Citation | 4 A.3d 976,415 Md. 727 |
| Parties | Sean Anthony DOVE v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Scott M. Swafford, Assigned Public Defender (Arnold & Porter LLP of Washington, D.C.; Brian M. Saccenti, Asst. Public Defender, Maryland Office of the Public Defender, of Baltimore, MD), on brief, for petitioner.
Douglas D. Guidorizzi, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, of Baltimore, MD), on brief, for respondent.
Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS, and BARBERA, JJ.
We are asked to determine whether the introduction of evidence at a sentencing hearing, which the State failed to disclose prior to the hearing in violation of Maryland Rule 4-342(d), was a harmless error. In the present case, the State, in an effort to prove that the petitioner, Sean Anthony Dove (“Dove”), was subject to an enhanced sentence under the provisions of Md.Code (2002), § 5-608(c) of the Criminal Law Article, 1 commonly known as the “three strikes rule” for drug-related offenses, introduced a fingerprint card, through the testimony of an expert witness, as substantive evidence of Dove's identity in a previous conviction. Dove made a timely objection to the admission of the fingerprint card based on the State's failure to disclose the card prior to the hearing, in violation of Md. Rule 4-342(d). Notwithstanding, the sentencing judge admitted the fingerprint card as evidence and relied on the fingerprint card in making his finding that the State had proven that Dove was subject to an enhanced penalty. We shall hold that, although the Court of Special Appeals properly applied a “ harmless error” analysis to the violation of Md. Rule 4-342(d), in the present case, the admission of the fingerprint card was not a harmless error because the card was substantive evidence of a required element under § 5-608(c). Further, the sentencing judge relied on the fingerprint card in determining that the State met its burden of proof under that section. In addition, the fingerprint card was not cumulative evidence of Dove's connection to the prior conviction.
Dove was charged in the Circuit Court for Baltimore County with one count of possession of heroin and one count of possession with intent to distribute heroin. A jury returned verdicts of guilty on both counts.
At sentencing, the State sought an enhanced penalty of 25 years' imprisonment without parole pursuant to § 5-608(c). The State asserted that Dove's conviction in the present case was his third qualifying conviction under the statute, or “third strike,” and presented evidence at the sentencing hearing to substantiate Dove's two prior qualifying convictions. The State's evidence at the sentencing hearing consisted of the certified records of the alleged prior convictions; the expert testimony of Detective Valentine, who was qualified as an expert in the identification of known inked fingerprints; and the testimony of Jodi Stouffer of the Maryland Division of Correction. Dove contested the accuracy of the records introduced to support the prior convictions and specifically objected to the admission of a fingerprint card used to link Dove's identity to the record of a prior conviction when the State failed to provide notice that the card would be used at the sentencing hearing. 2 Dove also objected to Detective Valentine's references to the fingerprint card in his testimony because the State had not disclosed the cards in discovery. Dove admitted that he received notice of the state's intent to call Detective Valentine as a witness prior to the sentencing hearing. Although the State properly notified Dove that he qualified as a repeat offender subject to an enhanced penalty, the State did not disclose to Dove or his attorney the State's intention to rely on the fingerprint cards.
Through Detective Valentine's testimony, the State presented two certified records of prior convictions, as well as two fingerprint cards, to prove that Dove had two prior convictions for qualifying offenses under § 5-608(c). The State presented the fingerprint card at issue in the present case, identified as State's Exhibit 2 at the sentencing hearing, and asserted that the Baltimore City Police collected the fingerprints from an individual arrested on June 7, 2000. The State asserted that the fingerprint card in question was associated with case number 200202007 from the criminal records of the Baltimore City Circuit Court, in which an individual identified as Sean Anthony Dove was found guilty of possession with intent to distribute heroin on March 19, 2001, receiving a sentence of eight years. Detective Valentine testified that he took inked impressions from Dove while he was in the lock-up and compared the inked impression to those on the fingerprint card in question. According to Detective Valentine, the fingerprints were those of the same person.
Detective Valentine also testified about a second conviction and another set of fingerprints collected during a different arrest. According to Detective Valentine, the fingerprints collected as a result of an arrest on August 31, 2000 also belonged to Dove. 3 The State asserted that the fingerprint card in question was associated with a March 19, 2001 conviction for possession with intent to distribute cocaine. Near the conclusion of Detective Valentine's direct testimony, the sentencing judge admitted the fingerprint cards, from both arrests, into evidence.
Following Detective Valentine's cross-examination and redirect examination, and the examination of Jodi Stouffer, the sentencing judge ruled on the State's request for the imposition of a mandatory minimum sentence of 25 years pursuant to § 5-608(c):
The Court: I have had an opportunity to review all of the documentation. State's Exhibit Number 1 has the person identified as Sean Dove. It gives a date of birth of 12-26-71 and under that 12-26-72. The documents [that] have been introduced as State's Exhibit Number 2 [the fingerprint card in question] and 4 have the same birthdate.
The argument by the State is that it doesn't make any difference what the criminal information says, almost form without substance, has some limited value in this regard: Whether the criminal information was incorrect or not or that they were switched, that is to say whether Page two of the State's Exhibits 1 and 3 were switched or the criminal information alleging that the Defendant was charged with possession with intent [to distribute] heroin and/or cocaine on various dates is not that important in the overall scheme of things for this reason: The documents that have been introduced indicate that on-State's Exhibit Number 1 indicates that on March 19th of 2001, the Defendant pled guilty to possession with intent to distribute, which is a qualifying offense. That document indicates that the charges in the Court were filed on July 20th of 2000.
State's Exhibit Number 3 indicates that on March 19th, 2001, the Defendant pled guilty to possession with intent to distribute heroin. Now, I don't know from this documentation whether or not the charges were amended or there was a clerical error, but certainly the Defendant pled guilty to those charges. And that was filed on October 12th of 2000 which was subsequent to the filing of the charges on State's Exhibit Number 1.
Now, in looking at State's Exhibits 2 [the fingerprint card in question] and 4 as I have already mentioned, I think that there is sufficient identification information both on the documents themselves and what the detective testified to when he requested specific documents related to specific arrests. Therefore, I find that although the documents seem somewhat confusing, that upon closer inspection you can understand what circumstances were and especially, and this is important, the Defendant pled guilty to possession with intent to distribute each one of these offenses, drugs, rather, and I don't know, as I said, whether there was an amendment made at the time. But either way, both drugs qualify as a predicate offense. I find as a matter of fact that the State has met its burden beyond a reasonable doubt.
(Emphasis added.)
In accordance with the finding that Dove was a repeat offender pursuant to § 5-608(c), the sentencing judge sentenced Dove to 25 years' incarceration without the possibility of parole.
Dove filed a timely appeal to the Court of Special Appeals, arguing, inter alia, that the sentencing court erred, as a matter of law, in finding that the State's evidence met the requirements for enhanced sentencing under § 5-608(c). Dove argued that Md. Rule 4-342(d) required the disclosure of the fingerprint card, which was intended to be admitted into evidence, prior to the sentencing hearing and the failure to disclose required a postponement of the sentencing hearing. The Court of Special Appeals, in an unreported opinion, held that the State's failure to disclose the fingerprint card violated Md. Rule 4-342(d), and that Dove's objection preserved the issue for appellate review, despite Dove's failure to cite the Rule upon objecting or specifically requesting a postponement of the sentencing hearing. The intermediate appellate court, however, held that the admission of the fingerprint card was harmless error because the fingerprint card was cumulative evidence, and thus the admission of the undisclosed evidence did not prejudice Dove. Accordingly, the Court of Special Appeals affirmed the judgment of the Circuit Court.
Dove filed a petition for a writ of certiorari in this Court, which we granted, Dove v. State, 411 Md. 355, 983 A.2d 431 (2009), to answer the following questions:
1. Did the Court of Special Appeals err in finding “harmless error” could be applied to substantive violations of Md. Rule 4-342(d)?
2. Did the Court of Special Appeals err in finding harmless the introduction of...
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