Alarcon-Ozoria v. State

Eric Antonio Alarcon-Ozoria v. State of Maryland, No. 4, September Term 2021. Opinion by Hotten, J. CRIMINAL LAW – DISCOVERY – MANDATORY DISCLOSURE The Court of Appeals held that the scope of the mandatory obligation of the State to disclose materials to the defense without request does not extend to materials held by a state correctional facility, which is not within the ambit of control by the State, does not regularly report to the State’s Attorney, and did not report to the State’s Attorney in the instant case. Maryland Rule 4-263(c)(2) obligates the State to disclose materials that “are in the possession or control of the [State’s] attorney, members of the [State’s] attorney’s staff, or any other person who either reports regularly to the [State’s] attorney’s office or has reported to the [State’s] attorney’s office in regard to the particular case.” In the instant case, the State requested and received recordings from a state correctional facility of inmate phone conversations made by Petitioner. The state correctional facility is a distinct entity from the State’s Attorney and did not participate in the investigation or prosecution of the defendant.

Therefore, the scope of mandatory disclosure of discoverable materials did not extend to the correctional facility. CRIMINAL LAW – DISCOVERY – DUE DILIGENCE The Court of Appeals held that the State did not violate its obligation of due diligence by providing jail call recordings of statements made by Petitioner on the morning of trial. Maryland Rule 4-263(c)(1) obligates the State to exercise due diligence in identifying “all of the material and information that must be disclosed under this Rule.” (Emphasis added). The obligation for due diligence was not triggered until the State received approximately 200 jail call recordings three days before trial.

The State did not violate its due diligence obligations by reviewing the recordings over the weekend and providing Petitioner with a select group of twelve recordings that it may have used as impeachment evidence and one recording used in its case-in-chief. CRIMINAL LAW – DISCOVERY – HARMLESS ERROR Assuming arguendo that the State violated its discovery obligations by providing jail call recordings to Petitioner on the morning of trial, the Court of Appeals held that the error was harmless beyond a reasonable doubt. The Court held in Thanos v. State, 330 Md. 77 , 622 A.2d 727 (1993), that assuming the State violated Md. Rule 4-263 by surprising the defendant with three witnesses before trial, “any error in the State’s discovery violations was harmless” given the existence of corroborating evidence. Id. at 97 , 622 A.2d at 736 .

Similar to the corroborating evidence in Thanos, the State provided additional evidence to establish consciousness of guilt independent of the jail call recordings, including a text message exchange, witness testimony, forensic evidence, a 911 call recording, pictures, and video footage of the incident. Therefore, the Court concluded any error was harmless. Circuit Court for Montgomery County Case No. 135035C Argued: September 14, 2021 IN THE COURT OF APPEALS OF MARYLAND No. 4 September Term, 2021 __________________________________ ERIC ANTONIO ALARCON-OZORIA v. STATE OF MARYLAND __________________________________ Getty, C.J., McDonald, Watts, Hotten, Booth, Biran, Adkins, Sally D. (Senior Judge, Specially Assigned), JJ. __________________________________ Opinion by Hotten, J. Watts, J., dissents.

Adkins, J., concurs. __________________________________ Filed: December 21, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-12-21 10:28-05:00 Suzanne C. Johnson, Clerk This appeal arises from a shooting outside a restaurant in Silver Spring, Maryland shortly after 1:00 a.m. on June 9, 2018. Witnesses and security camera footage identified two suspects involved in the shooting. Following an anonymous tip, law enforcement identified one of the men as Ruben Gilbert. Law enforcement obtained a search warrant for Mr. Gilbert’s cell phone and gathered evidence implicating Eric Alarcon-Ozoria (“Petitioner”) as the other person involved in the shooting.

Petitioner was charged with assault in the first-degree, use of a firearm in the commission of a crime of violence, and illegal possession of a firearm after a felony conviction. Mr. Gilbert was charged as a co-conspirator, but the State entered a nolle prosequi disposition in June 2019. Petitioner’s jury trial was scheduled for Monday, August 5 through Thursday, August 8, 2019 in the Circuit Court for Montgomery County. On the morning of August 5 before trial, the State shared with defense counsel for the first time approximately 200 jail call recordings of conversations between Petitioner and Mr. Gilbert.

The State had requested recordings of calls made by Petitioner from a state correctional facility on Wednesday, July 31, and received the calls on Friday, August 2. The State reviewed the recordings over the weekend, and on Sunday, August 4, requested additional recordings of any outgoing calls from the jail to Mr. Gilbert’s phone. At 6:00 a.m. on Monday, August 5, the correctional facility provided one additional recording of a jail call between Mr. Gilbert and a person originally identified as another inmate but later identified as Petitioner. During an on-the-record chambers conference, the State identified twelve recordings received on Friday, August 2 that it might use for impeachment purposes and the one recording received Monday, August 5 that it said it planned to use in its case-in-chief.

Over objection of defense counsel, the circuit court admitted the jail call recordings with the State’s assurance that it would not use the recordings in its case-in-chief or as impeachment evidence until the second day of trial, to give defense counsel time to review the recordings. The jury convicted Petitioner of illegal possession of a firearm. The circuit court sentenced Petitioner to fifteen years’ imprisonment, with all but twelve years suspended and upon release five years of supervised probation. Petitioner timely appealed to the Court of Special Appeals, which affirmed.

We granted certiorari on April 9, 2021 to address the following questions: 1. Does the State’s obligation to exercise due diligence in identifying and disclosing relevant materials in criminal litigation extend to phone call recordings collected and preserved by the State’s jail facilities? 2. In a criminal case, does a recording of a defendant’s own statement that is not disclosed until the morning of trial constitute an unfair surprise to the defense, such that it requires relief? We answer both questions in the negative and shall affirm the judgment of the Court of Special Appeals.

FACTS AND PROCEDURAL BACKGROUND The Underlying Incident On June 9, 2018, a shooting occurred outside Abyssinia, an Ethiopian restaurant in downtown Silver Spring, Maryland. The shots occurred in a nearby and “heavily populated[]” alleyway by the outdoor side patio bar. No one was injured. The restaurant 2 had an outdoor surveillance camera facing the alleyway, but the view of the shooting was blocked by restaurant awnings.

Amir Abdella, the manager of Abyssinia, heard the first gunshot and turned to see a person running away, followed by the shooter, later identified as Petitioner, holding a gun pointed towards the victim running away. A second man, who was later identified as Mr. Gilbert, walked behind the shooter. Mr. Abdella testified that he was only five to six feet away when he watched the shooter fire a second shot at the person running away. He heard a third shot, but did not see it.

Mr. Abdella testified that he saw the shooter and the second man earlier sitting together in the restaurant. He recognized these men because they sat with a group of women not eating or drinking and “saw the discomfort of the [women.]” He eventually called security to ask them to leave. Mr. Abdella provided to law enforcement security footage depicting the two men sitting together at a table and identified one of the men as Petitioner. Mr. Abdella described the shooter at trial, but admitted that he might not be able to identify the shooter again if he saw him.1 At least one other witness, Christopher Parkes, a security guard at the adjacent Kaldi’s Social House restaurant, heard multiple gun shots and saw muzzle flashes followed by people scattering in the alleyway.

A firearms 1 The description of the shooter provided by Mr. Abdella at trial contradicted, in part, his description of the shooter made during the initial 911 call. During trial, he testified that the shooter was 5’8” wearing a white shirt and black pants, but during the 911 call, he described the shooter as about 5’1” or 5’2” and wearing a white shirt with a black logo, black pants, and black sneakers. 3 expert corroborated the testimony of Mr. Parkes and opined that the two collected shell casings came from the same weapon. The State also produced another nearby restaurant surveillance video that depicted the two suspects: a taller man and a shorter man holding a gun. On July 30, law enforcement issued a press release seeking the public’s help in identifying the two men involved in the shooting.

An anonymous tip identified the taller man as Mr. Gilbert. Law enforcement compared the Motor Vehicle Administration photo of Mr. Gilbert with the surveillance footage and determined they were the same person. Law enforcement obtained a search warrant of Mr. Gilbert’s phone and found the following text conversation between Mr. Gilbert and Petitioner: [Petitioner:] Is dere a camera At dat lil side bar[?] [Petitioner:] And Erin just asked me bout you[.] [Mr. Gilbert:] Tell her hit me[.] [Mr. Gilbert:] N id[]k we Gucci doe babe[.] This text exchange occurred approximately one hour after the shooting. According to the detective assigned to the case, the “[s]idebar” referred to Abyssinia’s outdoor side patio bar in the alleyway—“the only [s]idebar in this entire area.” The detective also explained that the phrase “we Gucci” is slang for “we’re good.” Law enforcement executed an arrest warrant for Petitioner and Mr. Gilbert.

Officers seized clothes in the home of Petitioner consistent with those worn by the shooter in the surveillance video. The Grand Jury for Montgomery County indicted Petitioner on charges of assault in the first-degree, use of a firearm in the commission of a crime of violence, and illegal possession of a firearm after a felony conviction. A jury trial was scheduled for 4 August 5 through August 8, 2019 in the circuit court. Mr. Gilbert was charged as a co- conspirator, but a nolle prosequi disposition was entered for Mr. Gilbert in June 2019.

Legal Proceedings A. Discovery On January 23, 2019, defense counsel filed a discovery request, “in accordance with Maryland Rule 4-263:[2] . . . [for all] material and information in the possession or control of the State’s Attorney . . . and any others who have participated in the investigation or evaluation of the case and who either regularly report or, with reference to the particular case, have reported to the State’s Attorney of his/her office.” (Emphasis added). The purpose of the request was to “obtain disclosure of material and information to the fullest extent authorized and directed by Maryland Rule 4-263[.]” (Emphasis added). On May 15, 2019, defense counsel requested additional discovery pursuant to the State’s 2 Maryland Rule 4-263(c) provides: (c) Obligations of the Parties. (1) Due Diligence.

The State’s Attorney and defense shall exercise due diligence to identify all of the material and information that must be disclosed under this Rule. (2) Scope of Obligations. The obligations of the State’s Attorney and the defense extend to material and information that must be disclosed under this Rule and that are in the possession or control of the attorney, members of the attorney’s staff, or any other person who either reports regularly to the attorney’s office or has reported to the attorney’s office in regard to the particular case. Cross reference: For the obligations of the State’s Attorney, see State v. Williams, 392 Md. 194 [, 896 A.2d 973 ] (2006). 5 obligations under the Maryland Rules and State v. Williams, 392 Md. 194 , 896 A.2d 973 (2006), for any “recordings . . . or other materials concerning any . . . statements made by” Mr. Gilbert or Petitioner.

The State assured defense counsel that it would “open its evidentiary file” so defense counsel could see the State did not possess any “written statements by any witnesses otherwise not provided.” The State also assured the circuit court about its good faith compliance with discovery obligations: “I think it’s important that the Court know that we have met with counsel. . . . Open file discovery is the policy of my office, and open file discovery has been the practice in this case. We have met no less than two times . . . where we’ve gone through the file to make sure everything in counsel’s file reflects everything in the State’s file[.]” The circuit court acknowledged the two parties’ cooperation during a status hearing on July 25, 2019: “I appreciate counsel working together as you obviously are doing to try to work out as many of these issues as you can.” On July 26, the State disclosed additional evidence that it intended to introduce. The evidence was an activity log, gathered from Mr. Gilbert’s cellular phone, that purportedly counted Mr. Gilbert’s steps during different time frames on the night of the shooting.

Defense counsel moved to exclude the evidence as untimely and non-compliant with Md. Rule 4-263(c). On July 31, the circuit court agreed with defense counsel that the evidence should be excluded, but not because of a bad faith or unduly late disclosure on behalf of the State. The circuit court found the disclosure unfair to the defense under the circumstances “given that the parties had reached an agreement on . . . the scope of the 6 information that would be used from the cell phone [seized from Mr. Gilbert].” The activity log exceeded the scope of the parties’ stipulation and was excluded. On July 31, in preparation for trial, the State requested from Mr. Amando Gomes, an employee at the Montgomery County Correctional Facility, any recordings of jail calls made by Petitioner as an inmate at the correctional facility.

Counsel for the correctional facility delivered 201 jail call recordings to the State’s Attorney on Friday, August 2. The assigned prosecutor took them home over the weekend and began reviewing the calls on Saturday, August 3. The recordings contain calls made by Petitioner from December 19, 2018 to August 1, 2019. Petitioner first made a call to Mr. Gilbert on April 15, 2019 and subsequently called Mr. Gilbert “no less than 12 times.” The last call Petitioner made to Mr. Gilbert occurred on July 16, 2019.

Each call lasted approximately twenty minutes. The State characterized most of the conversations as “sundry discussi[on]” and devoid of a “smoking gun in terms of [‘]I did this.[’]” A few of the conversations discussed the case and referenced the unwillingness of Mr. Gilbert to provide testimony. The “State was concerned at the potential of suborning perjury and obstruction of justice. . . .” The State concluded that it would not use these calls in its case-in-chief, but could use some of them for impeachment if Mr. Gilbert testified. The State emailed Mr. Gomes on Sunday, August 4, requesting a backwards search of Mr. Gilbert’s phone number to identify any jail calls made to his phone.

Mr. Gomes replied via email at 6:00 a.m. on Monday, August 5 with one jail call made to Mr. Gilbert on April 2 (“the April 2 call”) from the account of another detainee with the last name 7 Pinto.3 In the April 2 call, Mr. Gilbert answered the phone and asked if the person calling was named “Sosa”—a nickname used by Petitioner. Petitioner answered in the affirmative and they proceeded to discuss the case over the course of a fifteen-minute conversation. The State shared the call recordings with defense counsel at the courthouse on the morning of August 5. During an on-the-record chambers conference, the State identified twelve calls between Petitioner and Mr. Gilbert that could be used to impeach Mr. Gilbert during his testimony.

The State also proffered the April 2 call between Mr. Gilbert and Petitioner to use in its case-in-chief. While the call was made through another inmate’s PIN number, the State explained that the call was between Petitioner and Mr. Gilbert. Defense counsel objected to the proposed evidence as untimely and requested a one- day continuance. The State argued that Petitioner waived any right to challenge the call because he attempted to conceal it using another inmate’s PIN number.

The State offered to withhold reference to the recordings in its opening statement and not to call Mr. Gilbert until the second day of trial because “the State certainly d[i]dn’t want to catch [defense counsel] by surprise.” The State also asked the circuit court and defense counsel to “understand the predicament the State is bound in when [it’s] listening to calls of obstruction of justice within this trial. And then [it] learn[s] of a call that was made by the defendant that was hidden and was [not] meant to be [] found which [the State] found.” 3 Each inmate at Montgomery County Correctional Facility receives an individual personal identification number (“PIN”) to make outgoing calls. 8 The circuit court did not rule on whether the State violated its discovery obligations, but denied the request for continuance. The circuit court articulated its belief that defense counsel would have an opportunity to review the April 2 call by the second day of trial. B. The Trial The State neither mentioned the April 2 call during its opening statement, nor called Mr. Gilbert as a witness on the first day of trial.

In addition to Mr. Gilbert’s testimony, the State called thirteen witnesses, consisting of civilians, members of law enforcement, and forensic experts. The State also presented fifty-eight exhibits, including three surveillance videos from nearby establishments. When the State called Mr. Gilbert, on the second day of trial, he testified that he was friends with Petitioner, and they were together at Abyssinia on the night of the shooting. He testified that the surveillance video depicted him and Petitioner, but that he did not see Petitioner with a gun, nor did he see Petitioner fire any shots.

Over a renewed objection from Petitioner, the State introduced the jail call recording:4 Mr. Gilbert: Who is this, is this Sosa? [Petitioner]: Yeah, yeah. *** [Petitioner]: I said I’m trying to figure something out []. . . . Mr. Gilbert: Uh-huh. It’s still looking like nothing going, man. . . . So, I ain’t worried about this, get you back on the brick, bro. [Petitioner]: Yeah, yeah. []. . . . *** Mr. Gilbert: [].

Sorry, I’m trying to get you situated. . . . I feel like you were with that bitch. And that bitch was fucking with (unintelligible). . . . It was her or somebody close to us. 4 This excerpt of the recording omits numerous lines of unintelligible dialogue. 9 *** Mr. Gilbert: I ain’t done nothing. [Petitioner]: Shut up.

Mr. Gilbert: Hey, I don’t. That’s how it is bro. That’s how I’m going to be, you feeling me? . . . There wasn’t no problem when you did that. [Petitioner]: Yeah.

Mr. Gilbert confirmed that the call was between him and Petitioner, even though the call was made using the PIN number of another inmate. At the close of evidence, the circuit court granted judgment of acquittal as to first- degree assault and use of firearm in a crime of violence. The jury convicted Petitioner of illegal possession of a firearm. The circuit court sentenced Petitioner to fifteen years’ imprisonment, with all but twelve years suspended, and upon release five years of supervised probation.

C. The Court of Special Appeals The Court of Special Appeals affirmed the circuit court in an unreported opinion. Alarcon-Ozoria v. State, No. 2149, Sept. Term, 2019, 2020 WL 7706980 (Md. Ct. Spec. App. Dec. 29, 2020). The Court reached the merits of the discovery violation, even though the circuit court did not find a discovery violation, and Petitioner failed to insist upon a ruling “as he is required to do[.]” Id. at ⁵.

In the absence of a “specific finding as a matter of law that the State violated the discovery rule,” the Court “exercise[d] independent de novo review to determine whether a discovery violation occurred[.]” Id. (quoting Williams v. State, 364 Md. 160, 169 , 771 A.2d 1082, 1087 (2001)). The Court concluded that the State did not violate its discovery obligations. Id. at ⁶.

According to the Court, the disclosure of the jail call recordings did not violate Md. 10 Rule 4-263 because the State did not have an underlying obligation to seek or obtain the jail call recordings. Id. The Court explained, “the State was not under a duty to disclose materials that it did not have.” Id. The Court rejected the argument that the State had an obligation to seek the records at any point prior to trial.

Id. The Court also found that the State exercised due diligence. According to the Court, “[i]t is significant that [Petitioner] attempted to conceal the call by using another inmate’s phone number to make the call, and we agree that [Petitioner] cannot claim unfair surprise” when Petitioner was “an active concealer.” Id. Finally, the Court found that the State was sufficiently prompt in providing the recordings to Petitioner.

The State shared the recordings after having an opportunity to review the materials over the weekend. The circuit court did not abuse its discretion, according to the Court, by declining to continue the case for a day. Id. The circuit court fashioned an appropriate remedy by allowing the State to refrain from mentioning the recording in its opening statement and to delay calling Mr. Gilbert so Petitioner could review the recording.

Id. Petitioner timely filed a petition for certiorari, which this Court granted on April 9, 2021. Alarcon-Ozoria v. State, 474 Md. 220 , 253 A.3d 1076 (2021). DISCUSSION Standard of Review The circuit court is vested with broad discretion in administering discovery.

Williams v. State, 416 Md. 670, 698 , 7 A.3d 1038, 1054 (2010). Therefore, this Court “reviews for abuse of discretion a [circuit] court’s decision to impose, or not impose a 11 sanction for a discovery violation.” Dackman v. Robinson, 464 Md. 189, 231 , 211 A.3d 307, 332 (2019) (citing Beka Indus., Inc. v. Worcester Cty. Bd. of Educ., 419 Md. 194, 232 , 18 A.3d 890, 913 (2011)). If the circuit court “made no specific finding as a matter of law that the State violated the discovery rule, we exercise independent de novo review to determine whether a discovery violation occurred.” Williams, 364 Md. at 169 , 771 A.2d at 1087 .

We review any discovery violation for harmless error. Johnson v. State, 360 Md. 250, 269 , 757 A.2d 796, 806 (2000); Green v. State, 456 Md. 97, 165 , 171 A.3d 1162, 1201 (2017) (“Having established that the State violated [Md.] Rule 4-263[] . . . we must next inquire as to whether the error was harmless.”). “If the trial judge erred because the State did in fact violate the discovery rule, we consider the prejudice to the defendant in evaluating whether such error was harmless.” Williams, 364 Md. at 169 , 771 A.2d at 1087 (citation omitted). The Contentions of the Parties Petitioner contends that the State violated its discovery obligations by producing jail call recordings on the morning of the trial. According to Petitioner, the State had a mandatory and automatic obligation to disclose the jail call recordings without delay or request pursuant to Md. Rule 4-263.

This obligation extended to material in the possession or control of the correctional facility because, according to Petitioner, the State exercised a supervisory relationship over the facility. Petitioner argues that the supervisory relationship can be demonstrated by the State’s direct and informal access to materials held by the correctional facility. The State 12 received the recordings within 48 hours of an email request, and the recordings were “hand- delivered” to the State’s Attorney’s Office. According to Petitioner, private counsel would need to wait at least nine days pursuant to Md. Rule 4-265(d)5 before a subpoena request for jail call recordings would be enforceable.

Because the jail call recordings were purportedly under the constructive possession and control of the State, Petitioner asserts that the State violated its obligation of due diligence pursuant to Md. Rule 4-263(c)(1) by failing to identify and disclose the jail call recordings until the morning of trial. Petitioner cites this Court’s definition of due diligence from Argyrou v. State, 349 Md. 587, 604 , 709 A.2d 1194, 1202 (1998), which examined due diligence in the context of Md. Rule 4-331(c) (providing the grant of a new trial on the basis of newly discovered evidence). Petitioner notes that due diligence requires both good faith and timeliness. According to Petitioner, the State’s effort to locate the jail recordings on the eve of trial violated the timeliness component of due diligence.

The lack of knowledge of the recordings, according to Petitioner, did not excuse the State from its obligation of due diligence during discovery. Petitioner also argues the State’s assertion, 5 Maryland Rule 4-265(d) provides: (d) Filing and Service. Unless the court waives the time requirements of this section, a request for subpoena shall be filed at least nine days before trial in the circuit court, or seven days before trial in the District Court, not including the date of trial and intervening Saturdays, Sundays, and holidays. At least five days before trial, not including the date of the trial and intervening Saturdays, Sundays, or holidays, the clerk shall deliver the subpoena for service pursuant to [Md.] Rule 4-266(b).

Unless impracticable, there must be a good faith effort to cause a trial subpoena to be served at least five days before the trial. 13 that Petitioner deliberately concealed his conversation with Mr. Gilbert by using the PIN number of another inmate is unsupported by the record. Finally, Petitioner contends that the late disclosure prejudiced his defense and necessitates vacating his conviction. Petitioner notes that the purpose of discovery is to assist the defendant in preparing a defense and to prevent unfair surprise. According to Petitioner, both of these purposes were violated by the State.

Petitioner did not learn about the jail call recordings until the morning of the trial, which meant that it had no time to adjust its trial strategy that had been in the works for months. Petitioner asserts that the State intentionally delayed seeking the calls and in doing so, engaged in “gamesmanship” in violation of discovery rules. The call itself provided evidence of Petitioner’s consciousness of guilt, which meant the jury was presented incriminating evidence without an adequate opportunity for the defense to respond. The State argues that the scope of its discovery obligations did not extend to the correctional facility, because the scope of its obligations extends only to materials under the possession or control of the State’s Attorney, or someone who reports regularly to the State’s Attorney, such as a staff member or law enforcement.

A correctional facility staff member, according to the State, is not a person who regularly reports to the State’s Attorney. The State asserts that its discovery obligations may extend to persons outside of its office only if they constitute a prosecutorial arm of the government. A correctional facility, like other state agencies including mental health facilities or juvenile detention facilities, do not operate for the purpose of investigating or prosecuting cases. Nor does a correctional facility, unlike a prosecutor or a police officer, report to the State’s Attorney. 14 The State contends no reporting relationship emerged between the correctional facility and the State’s Attorney’s Office in the case at bar.

The State requested the calls from a correctional facility employee, who did not respond until the next day. The Assistant State’s Attorney also emailed the employee over the weekend preceding the trial and did not receive a response until Monday morning. In both of these instances, according to the State, the correctional facility fulfilled requests for information, which does not establish a reporting relationship as contemplated by Md. Rule 4-263(c). The State also raises practical concerns about Petitioner’s interpretation of the State’s discovery obligations.

Incarcerated defendants, including Petitioner, may make jail calls from the time of arrest until trial. The State argues that it would be impractical to require continuous requests for jail calls during this time period. Interpreting the scope of Md. Rule 4-263(c) to include a correctional facility, according to the State, would place an undue burden on prosecutors because it would extend mandatory disclosures from within the State’s Attorney’s Office and its agents to virtually any state agency that may possess discoverable information. The State also rejects Petitioner’s contention that its late disclosure constituted “strategic, last-minute gamesmanship[,]” by drawing a distinction between the State’s capacity to acquire the jail call recordings at an earlier date and the State’s obligation to acquire the jail call recordings at an earlier date.

The State notes that it could have made an earlier inquiry, but it was not required to do so. Therefore, the State asserts that its obligation to act promptly in disclosing the jail calls did not materialize until the State gained possession of the material. The State 15 received the calls on Friday, August 3, reviewed them over the weekend to identify which calls were relevant, and disclosed the calls on Monday, August 5. The State notes that the April 2 call—used in its case-in-chief—was not obtained by the State until Monday, August 5.

The State alternatively argues that even if it had an obligation to disclose the jail recordings sooner, Petitioner’s attempt to conceal the call from detection prevents any finding of unfair surprise. Assuming arguendo that a discovery violation occurred, the State argues that the circuit court imposed an appropriate remedy. The State contends that the circuit court has discretion to impose or not impose a sanction for a discovery violation. In this case, the circuit court declined the defense’s request for a one-day continuance, but accepted the State’s offer to delay mentioning the April 2 call or Mr. Gilbert’s testimony until the second day of trial to give defense counsel an opportunity to review the recording.

The circuit court’s exercise of discretion, according to the State, appropriately remedied any violation that may have arisen from the State’s morning-of disclosure. Finally, the State argues that even if the circuit court erred by not continuing the trial one day for a fifteen-minute phone recording that the State received and disclosed within the same day, the error was harmless. Defense counsel reviewed the call but did not make any arguments during trial relating to its late disclosure. The State conceded the call was not a “smoking gun” because it only contained speculation about who made the anonymous tip to police about the identity of Mr. Gilbert.

The recording tended to demonstrate consciousness of guilt of Petitioner, but according to the State, did not affect 16 the verdict given the panoply of other evidence that more clearly demonstrated consciousness of guilt. Application of Md. Rule 4-263(c) A. The scope of the State’s mandatory disclosure obligations pursuant to Md. Rule 4-263(c)(2) does not include jail call recordings held by a state correctional facility that has not reported to the State in a particular case. Md. Rule 4-263(c) provides: (c) Obligations of the Parties. (1) Due Diligence.

The State’s Attorney and defense shall exercise due diligence to identify all of the material and information that must be disclosed under this Rule. (2) Scope of Obligations. The obligations of the State’s Attorney and the defense extend to material and information that must be disclosed under this Rule and that are in the possession or control of the attorney, members of the attorney’s staff, or any other person who either reports regularly to the attorney’s office or has reported to the attorney’s office in regard to the particular case. Cross reference: For the obligations of the State’s Attorney, see State v. Williams, 392 Md. 194 [, 896 A.2d 973 ] (2006). “To interpret [discovery rules], we use the same canons and principles of construction used to interpret statutes.” Williams, 392 Md. at 206 , 896 A.2d at 980 (quoting State ex rel.

Lennon v. Strazzella, 331 Md. 270, 274 , 627 A.2d 1055, 1057 (1993)). We begin our analysis by looking at the plain meaning of the rule. Johnson, 360 Md. at 264– 65, 757 A.2d at 804 . “When the words are clear and unambiguous, ordinarily we need not go any further. . . . Only when the language of the rule is ambiguous is it necessary that we look elsewhere to ascertain legislative intent.” Williams, 392 Md. at 207 , 896 A.2d at 980 17 (quoting Strazzella, 331 Md. at 274–75, 627 A.2d at 1057 ) (citations omitted).

This Court may “search[] for rulemaking intent in other indicia, including the history of the Rule or other relevant sources intrinsic and extrinsic to the rulemaking process, in light of: (1) the structure of the Rule; (2) how the Rule relates to other laws; (3) the Rule’s general purpose; and (4) the relative rationality and legal effect of various competing constructions.” Green, 456 Md. at 125 , 171 A.3d at 1178 (citations, quotations, and other marks omitted). “We may also consider other persuasive sources beyond the text of the rule, particularly case law interpreting the rule in question.” Williams, 364 Md. at 171 n.13, 771 A.2d at 1088 n.13. Case law interpreting prior versions of the rule is both persuasive and instructive. Id., 771 A.2d at 1088 n.13. This Court in Williams examined the plain text of the substantially similar predecessor to Md. Rule 4-263.6 The scope of mandatory discovery obligations for the State comprised three groups: (1) the State’s Attorney, (2) his or her staff members, (3) and those “who have participated, or are participating, in the case itself, by, for example, participating ‘in the investigation or evaluation of the action[,]’ regularly reporting to the 6 The previous version of Md. Rule 4-263(c), which was formerly labeled Md. Rule 4-263(g), stated: The obligations of the State’s Attorney under this Rule extend to material and information in the possession of the State’s Attorney and staff members and any others who have participated in the investigation or evaluation of the action and who either regularly report, or with reference to the particular action have reported, to the office of the State’s Attorney.

Williams, 364 Md. at 176–77, 771 A.2d at 1091 . 18 State’s Attorney’s Office, or, with respect to the case under review, have reported to the State’s Attorney’s Office.” 392 Md. at 208 , 896 A.2d at 981 (emphasis added). While the Williams Court did not address whether the scope of the State’s discovery obligations extended to other State agencies, this Court held that such mandatory disclosures would only apply in limited circumstances, precisely enumerated by the rule. Id. at 209–10, 896 A.2d at 982 (“We hold that by referring only to the ‘State’s Attorney and staff members,’ without any restriction, and then including ‘any others,’ restricted to those with a direct present or past involvement with the particular action, [the rule] draws a distinction between the State’s Attorney’s Office and those outside that Office who are on the prosecution team.”) (Emphasis added). This Court reached a similar conclusion in Thomas v. State, 397 Md. 557 , 919 A.2d 49 (2007).

In Thomas, a defendant told an FBI Agent, following his arrest, that “God has forgiven me.” Id. at 564 , 919 A.2d at 53 . The case proceeded to trial in the Circuit Court for Charles County. The prosecutor advised the circuit court that he learned of the “God has forgiven me” statement one week before trial and informed defense counsel the same day. Id., 919 A.2d at 53–54.

The defense objected to the untimely disclosure as a violation of Md. Rule 4-263, but the circuit court determined that there was no discovery violation. Id. at 565 , 919 A.2d at 54 . The defendant was convicted and appealed. Id. at 565–66, 919 A.2d at 54 .

Noting that FBI agents do not regularly report to the State’s Attorney’s Office, the Court of Special Appeals held that the defendant’s statements to the FBI agent did not fall within the State’s disclosure obligation until the agent first “reported” that information 19 to the State’s Attorney. Thomas v. State, 168 Md. App. 682, 695 , 899 A.2d 170, 178 (2006). This Court agreed that the scope of discovery obligations generally does not extend to agents outside the State’s Attorney’s Office: Ordinarily, the obligation to . . . provide discovery [and] impute information within the knowledge of a State agent to the State’s Attorney, does not apply to federal agents because they do not usually participate in the investigation or evaluation of the action and do not either regularly report, or with reference to the particular action, actually report to the office of the State’s Attorney. Thomas, 397 Md. at 569 , 919 A.2d at 56 (emphasis added).

However, the FBI agent in Thomas may have triggered the discovery obligations of the State because “[h]e participated in the investigation as a member of the Washington, D.C. Cold Case Unit, he arrested [Thomas], and he wrote a report in the matter.” Id., 919 A.2d at 56 .7 This Court’s prior interpretation of the scope of the State’s discovery obligations demonstrates that a jail call recording, held by a correctional facility, does not trigger the State’s mandatory disclosure requirements pursuant to Md. Rule 4-263(c) because the correctional facility is not part of the State’s Attorney’s Office, nor does it directly or regularly report to the State’s Attorney in this case. This Court considered extending the scope of Md. Rule 4-263(c) to an FBI agent in Thomas because the record demonstrated that the FBI agent was working hand in glove with Maryland law enforcement and the State’s Attorney. Unlike the FBI agent in Thomas, who arrested the defendant, solicited 7 This Court never determined whether the statement made to an FBI agent triggered the mandatory disclosure obligation of the State because it concluded the belated disclosure was not prejudicial. Id. at 569 , 919 A.2d at 56 . 20 an incriminating statement during a criminal investigation, and wrote a report, a correctional facility generally takes no part in the investigation or prosecution of someone who happens to be detained in that facility.

We reject Petitioner’s contention that the correctional facility reported to the State’s Attorney in this particular case by providing the jail call recordings upon request. The State requested material held by the correctional facility that was equally available to both parties. The correctional facility, like any state agency responding to an information request, fulfilled a ministerial function. See Blundon v. Taylor, 364 Md. 1 , 17 n.9, 770 A.2d 658 , 667 n.9 (2001) (“[c]lerical duties are generally classified as ministerial”) (citations and quotation omitted).

We are not persuaded by the claim of Petitioner that requesting the records via email, as opposed to subpoena pursuant to Md. Rule 4-265(d), demonstrates preferential treatment, thereby establishing a reporting relationship between the correctional facility and the State’s Attorney. The plain text of the rule does not define “reports regularly” or “has reported[,]” but Petitioner’s interpretation of the rule would lead to untenable results. See Frost v. State, 336 Md. 125, 137 , 647 A.2d 106, 112 (1994) (“[W]e seek to avoid constructions that are illogical, unreasonable, or inconsistent with common sense.”). If information sharing between state entities without a subpoena established a reporting relationship, then there would be no limit to the State’s Attorney’s disclosure obligations.

Petitioner’s interpretation would significantly expand the scope of the rule as articulated by this Court in Williams and Thomas, which held that mandatory disclosure only extends 21 to the State’s Attorney’s Office, its support staff, and agents who regularly participate in the investigation or prosecution of a case, or who have participated in the specific case. We hold that the scope of the State’s discovery obligations did not extend to a jail call recording in the possession of a state correctional facility, a facility that was not part of the State’s Attorney’s Office, nor did it participate in the investigation or prosecution of the instant case. B. The State exercised due diligence in disclosing the jail call recordings under the circumstances. Maryland Rule 4-263(c)(1) obligates parties to exercise due diligence in identifying all information and material that must be disclosed under the rule.

This Court has not examined the due diligence requirement pursuant to Md. Rule 4-263(c)(1) since its addition to the rule in a 2008 amendment. Like Md. Rule 4-263(c)(2), we interpret the plain text of Md. Rule 4-263(c)(1) in light of the object and purpose of the rule, and may consult its enactment history and case law for interpretive guidance. The plain text of Md. Rule 4-263(c)(1) indicates that the obligation for due diligence only attaches to material “that must be disclosed under this Rule.” (Emphasis added). Material must be disclosed when two conditions are satisfied.

First, as discussed above, the material must fall within the scope of discovery obligations pursuant to Md. Rule 4- 263(c)(2), i.e., “in the possession or control of the attorney, members of the attorney’s staff, or any other person who either reports regularly to the attorney’s office or has reported to the attorney’s office in regard to the particular case.” Md. Rule 4-263(c)(2). 22 Second, the material must satisfy one of the several categories of information enumerated by Md. Rule 4-263(d). Maryland Rule 4-263(d)(1) is the category of information relevant to the instant case because it pertains to statements of the defendant. It requires the State’s Attorney to provide the defense, without a request, “[a]ll written and oral statements of the defendant and of any co-defendant that relate to the offense charged and all material and information, including documents and recordings, that relate to the acquisition of such statements[.]” Md. Rule 4-263(d)(1) (emphasis added). We assume without deciding that at least some of the jail call recordings between Petitioner and Mr. Gilbert satisfied Md. Rule 4-263(d)(1) because the material contained statements of the defendant that referenced the ongoing prosecution.

The statements did not meet the first condition necessary for mandatory disclosure—“in the possession or control” of the State’s Attorney or a person that reports regularly to the State’s Attorney or had reported in the particular case—until Friday, August 5 when the State received the recordings from the correctional facility. Md. Rule 4-263(c)(2). Therefore, the obligation to exercise due diligence, according to the plain text of the rule, did not attach until it came into the actual or constructive possession or control of the State’s Attorney. See Warrick v. State, 302 Md. 162 , 170–71, 486 A.2d 189, 193 (1985) (“There are, nevertheless, limitations on the State’s obligations under Md.[ ]R. 741 a 2 [the predecessor to Md. Rule 4-263]. . . . [The rule] limits that which is discoverable . . . to material and information in possession or control of [the State’s Attorney, of] members of his [or her] staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular 23 case have reported to