Mason v. State

Troy Mason v. State of Maryland, No. 21, September Term, 2023. Opinion by Hotten, J. DISCOVERY – SANCTION FOLLOWING VIOLATION OF THE RULES – EXERCISE OF DISCRETION BY THE CIRCUIT COURT The circuit court may exercise sound discretion in determining whether to impose a sanction following its finding of a violation of the discovery rules. Hutchins v. State, 339 Md. 466, 475 , 663 A.2d 1281, 1286 (1995). The Supreme Court of Maryland held that the Appellate Court of Maryland erred in opining that the inadvertent nature of a violation could “in and of itself be dispositive” in holding whether there was an abuse of discretion.

Mason v. State, 258 Md. App. 266 , 281–82, 297 A.3d 642 , 650–51 (2023). The Court re- affirmed that the circuit court must consider the prejudice suffered by the non-offending party. See, e.g., Thomas v. State, 397 Md. 557, 572 , 919 A.2d 49, 58 (2007) (“[T]he [circuit] court’s evaluation of a discovery violation necessarily includes determining whether the violation has caused prejudice.”). Given that the circuit court has the discretion whether to impose a sanction, the Court held that “error correction” could justify the admission of evidence regarding items not disclosed in discovery, so long as the circuit court did not abuse its discretion in taking the action.

CRIMINAL LAW – MISTRIAL – ABUSE OF DISCRETION “The grant of a mistrial is considered an extraordinary remedy and should be granted only if necessary to serve the ends of justice. While it is in the sound discretion of the trial judge to declare a mistrial, he or she may do so only if a high degree of necessity demands that he or she do so[.]” State v. Hart, 449 Md. 246, 276 , 144 A.3d 609, 626 (2016) (quotation marks and citations omitted). The Supreme Court of Maryland held that Petitioner failed to establish that there was manifest necessity for a mistrial and thus, the circuit court did not abuse its discretion in denying the request, where Petitioner chose to elicit testimony regarding an item not disclosed in discovery, yet later argued he was prejudiced by this testimony. CRIMINAL LAW – CURATIVE INSTRUCTION –ABUSE OF DISCRETION “As a general rule, judges are accorded broad discretion in determining whether a particular instruction should be given on a particular occasion[.]” Carter v. State, 366 Md. 574, 584 , 785 A.2d 348, 353 (2001).

The Supreme Court of Maryland held that the circuit court did not err in applying Patterson v. State, 356 Md. 677 , 741 A.2d 1119 (1999) and Cost v. State, 417 Md. 360 , 10 A.3d 184 (2010) to the present case. The Court further held it was not an abuse of discretion for the circuit court to deny the request by Petitioner for a curative instruction, where the requested instruction was fairly covered by other standard instructions, or alternatively, the request was a motion to strike testimony elicited by the Petitioner. Circuit Court for Carroll County Case No.: C-06-CR-21-000610 IN THE SUPREME COURT Argued: February 6, 2024 OF MARYLAND No. 21 September Term, 2023 _________________________________ TROY MASON v. STATE OF MARYLAND _________________________________ Fader, C.J., Watts, Hotten,* Booth, Biran, Gould, Eaves, JJ. _________________________________ Opinion by Hotten, J. _________________________________ Filed: May 30, 2024 *Hotten, J., now a Senior Justice, participated in the hearing and conference of this case while an active member of this Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Court. After being recalled pursuant to Government Article) this document is authentic.

Maryland Constitution, Article IV, Section 2024.05.30 3A, she also participated in the decision 09:59:43 -04'00' and adoption of this opinion. Gregory Hilton, Clerk Troy Mason (“Petitioner”) was charged in the Circuit Court for Carroll County with second-degree assault. During trial cross-examination of a law enforcement officer who responded to the scene, both Petitioner and the State discovered that a “strangulation form” supplied through discovery was not the original form completed at the scene. Initially, Petitioner requested a curative instruction.

Instead, the circuit court offered Petitioner an opportunity to question the officer outside the presence of the jury, to which Petitioner agreed. After questioning the officer and learning details regarding the alleged original strangulation form, Petitioner elected to proceed with trial and “let the truth come out.” The next day, Petitioner moved for a mistrial, and alternatively, requested a curative instruction, both of which were denied. Petitioner was convicted of second-degree assault and sentenced to ten years of incarceration with all but seven years suspended and a period of supervised probation for five years. The ensuing appeal arose from Petitioner’s request for a mistrial or curative instruction.

Mason v. State, 258 Md. App. 266 , 272, 297 A.3d 642 , 645 (2023). In a reported opinion, the Appellate Court of Maryland (“Appellate Court”) affirmed the conviction and the denial of a mistrial. Id. at 274 , 297 A.3d at 646. The Appellate Court analyzed the alleged prejudice sustained by Petitioner and concluded it did not warrant a mistrial.

Id. at 284–85, 297 A.3d at 651–53. We granted certiorari to address the following questions which we have reworded1 for clarity as follows: 1 As certified, Petitioner presented the following three questions: (continued . . .) 1. Did the Appellate Court err in ruling that a mistrial was not required by virtue of the inadvertent nature of the discovery error? 2. Is “error correction” following a violation of the discovery rules a permissible justification for the admission of previously undisclosed evidence? 3.

Did the circuit court abuse its discretion in denying Petitioner’s motion for a mistrial or curative instruction? We answer Petitioner’s first two questions in the affirmative, but answer the third in the negative, holding that the circuit court did not abuse its discretion and the Appellate Court did not err in affirming. (. . . continued) 1. Did the Appellate Court err in ruling that a mistrial was not required simply by virtue of the inadvertent nature of the discovery error? 2.

Is “error correction” a legitimate reason to allow previously undisclosed evidence into trial, thereby excusing a discovery violation, where the new evidence contradicts information disclosed during discovery and previously relied on by the defense at trial? 3. Did the courts below abuse their discretion by finding no prejudice warranting a mistrial or curative instruction, where during discovery the State produce a blank Strangulation Supplement documenting no injuries to the complaining witness that was relied on by defense counsel at trial, and where surprise testimony revealed that the disclosed Supplement was erroneous and that the original Strangulation Supplement – which was not produced during discovery -- did document injuries. 2 FACTUAL AND PROCEDURAL BACKGROUND Factual Background On August 15, 2021, police officers responded to a 911 call reporting a domestic disturbance at 81 ½ Pennsylvania Avenue in Westminster, Maryland. The responding officers included Deputy Carbaugh (“Dep. Carbaugh”),2 who was responsible for submission of all forms completed on scene to the supervising officer at the police station, and Corporal DeAngelis (“Cpl.

DeAngelis”). Cpl. DeAngelis interviewed Ms. G.,3 the complaining witness at the scene, who alleged Petitioner assaulted and attempted to strangle her. When a complaining witness alleges an attempted strangulation, officers are required to complete a “Strangulation Supplement” (“strangulation form”) consisting of a front and back page.4 The strangulation form documents the visible injuries the complaining witness sustained and includes input from the witness.

The back page of the form contains a series of checkable boxes reflecting where injuries were observed. The form also required officers to reflect on a diagram where the injuries were located and 2 At the time of the incident, Dep. Carbaugh was a patrol officer with the City of Westminster Police Department. Prior to Petitioner’s trial, Dep.

Carbaugh became a deputy with the Washington County Sheriff’s Office. 3 We use the moniker “Ms. G.” to preserve the anonymity of the complaining witness. 4 The Strangulation Supplement is itself a supplement to the “Maryland Domestic Violence Supplemental,” which is a two-page document used to record information about allegations of domestic violence. A copy of the back page of the Strangulation Supplement introduced at trial is attached as Appendix A. 3 whether the complaining witness had been seen by a medic and referred for medical treatment. Cpl. DeAngelis allegedly completed a strangulation form after speaking with Ms. G. Following the on-scene interviews, Dep.

Carbaugh arrested Petitioner. Dep. Carbaugh submitted the reports completed on the scene, including a strangulation form which had no checked boxes on its back page. On August 31, 2021, the State’s Attorney’s Office filed a criminal information in the Circuit Court for Carroll County charging Petitioner with second-degree assault.

Petitioner’s Trial Petitioner’s trial was held on March 22 and March 23, 2023. The State called Dep. Carbaugh to testify regarding his investigation of the incident. On direct examination, Dep.

Carbaugh testified that he only spoke with Petitioner and had information concerning Ms. G. relayed to him by Cpl. DeAngelis. [Dep. Carbaugh:] [W]hen I pulled up, I was advised the suspect was at 76 Pennsylvania Avenue in the parking lot. I turned around.

Upon speaking with other officers, the suspect was identified as [Petitioner]. *** [The State:] Did you make contact with [Petitioner]? [Dep. Carbaugh:] Yes, I did. [The State:] And how did that contact go down? What did you do? [Dep. Carbaugh:] I made contact with [Petitioner].

I tried to understand what was going on with the call. He was stumbling around, slurred speech. I also noticed he had a cut on his right hand. When I was speaking with him, I was pulled away with -- by [Cpl.] DeAngelis and was advised of the victim and what the injuries of the victim were. 4 *** [The State:] When you spoke to [Petitioner], did he tell you anything about what had happened? *** [Dep.

Carbaugh:] [H]e advised me that he left the area for a while, and he was coming home to his girl, which he was referring to [Ms. G.]. [Petitioner] also advised me that he got into an argument with Ms. [G.]. *** [The State:] What else did he tell you? [Dep. Carbaugh:] That was -- at that moment in time that was it. Until I was then pulled aside by [Cpl.] DeAngelis and advised of the victim’s status. *** [The State:] And after you finished your conversation did there come a time that you left [Petitioner]? [Dep. Carbaugh:] No, there was not. [The State:] Did there come a time that you spoke to anyone else that was at the scene? [Dep.

Carbaugh:] No. Nobody other than [Cpl.] DeAngelis when he came back to me and gave -- relayed information to me. [The State:] And based on information you were given from [Cpl.] DeAngelis, then what happened? [Dep. Carbaugh:] We had enough evidence to [arrest Petitioner]. *** [The State:] And why did you place him under arrest? [Dep. Carbaugh:] I placed him under arrest for domestic assault. [The State:] And that was based on what information? 5 [Dep. Carbaugh:] That was based on [Cpl.] DeAngelis’s observation of the victim. [The State:] And who was [Cpl.] DeAngelis speaking with while you were speaking with [Petitioner]? [Dep.

Carbaugh:] He was speaking with [Ms. G.]. During cross-examination, Dep. Carbaugh testified that he was the primary investigator for the scene and had submitted forms which recorded information gained from Ms. G. [Petitioner’s counsel:] So [you were] the primary investigator? [Dep. Carbaugh:] Yes.

The primary investigator of that sector. *** [Petitioner’s Counsel:] Okay. Now when you were investigating the scene, there are many forms that law enforcement use to fill out either -- let’s say a statement of charges or other checkbox forms. Is that accurate? [Dep. Carbaugh:] Yes. *** [Petitioner’s counsel:] Okay.

And there is domestically related form[s], is that correct? [Dep. Carbaugh:] Yes. Petitioner then sought to introduce two forms, which the trial transcripts reflect that Dep. Carbaugh attested to having completed.

The first of these forms was the “Domestic Violence Lethality Screen for Law Enforcement.” [Petitioner’s counsel:] Do you recognize this document? [Dep. Carbaugh:] Yes, I do. [Petitioner’s counsel:] Okay. And what is this document? 6 [Dep. Carbaugh:] This is the Domestic Violence ---- for Law Enforcement. [Petitioner’s counsel:] Do you recognize when you filled -- well, do you see your name on this page? [Dep.

Carbaugh:] Yes, I do. *** [Petitioner’s counsel:] Did you fill it out? [Dep. Carbaugh:] At the time. Yes, I did. [Petitioner’s counsel:] Okay. But you recognize this[?] [Dep.

Carbaugh:] Yes, I recognize that form. [Petitioner’s counsel:] Is that a true and accurate document? [Dep. Carbaugh:] Yes. Without objection from the State, the circuit court admitted the Domestic Violence Lethality Screen for Law Enforcement as Defense Exhibit 1. Petitioner published the exhibit to the jury, and the colloquy proceeded as follows: [Petitioner’s counsel:] In regards to all the responses --- did Ms. [G.] answer in the affirmative to any of these? [Dep.

Carbaugh:] No. *** [Petitioner’s counsel:] What did Ms. [G.] do according to this form? [Dep. Carbaugh:] She answered -- if she didn’t answer, everything -- all the answers are unknown or not answered. Petitioner then sought to introduce the strangulation form. [Petitioner’s counsel:] Do you recognize this form? 7 [Dep. Carbaugh:] Yes. [Petitioner’s counsel:] Explain to the jury what the form is. [Dep.

Carbaugh:] This is the Strangulation Form for domestic violence. [Petitioner’s counsel:] Okay. Is it the form that you filled out for this case? [Dep. Carbaugh:] Yes. Without objection from the State, the circuit court admitted the strangulation form as Defense Exhibit 2.

Petitioner published the strangulation form and the cross-examination continued as follows: [Petitioner’s counsel:] So when you come upon the scene of somebody, it sounds like in this case there were -- is it accurate that there were reports of a strangulation? Is that accurate? [Dep. Carbaugh:] That is correct. [Petitioner’s counsel:] Okay. So you fill out -- this is a form that you guys - - or excuse me.

The police have to help aid in gathering information about strangulation. Is that accurate? [Dep. Carbaugh:] Yes. [Petitioner’s counsel:] Okay. So what we have got in front of you are checkboxes.

Who are you trying to observe these things on? [Petitioner]? [Dep. Carbaugh:] No. Ms. [G.]. [Petitioner’s counsel:] Ms. [G.]. Okay. So when we are looking at this document, you see her red face?

So because it is unchecked, what does that mean? [Dep. Carbaugh:] It was unchecked because I -- more or less there wasn’t the observation by me with the Strangulation Form at the time. [Petitioner’s counsel:] Okay. And there are no other checkboxes --- to under the chin? Redness, for example, and scratch marks.

That is not checked. What does that mean? 8 [Dep. Carbaugh:] The same thing. Since I did not observe the injuries at first, I was not able to check them off. [Petitioner’s counsel:] Okay.

And moving over to the eyes and the eyelids, *** there [are] no checks there. So what does that mean? [Dep. Carbaugh:] That means that there -- if there’s no checks, it obviously was not observed. [Petitioner’s counsel:] You didn’t see any of that? [Dep. Carbaugh:] No. Again, I didn’t see the injuries. [Petitioner’s counsel:] Okay.

Let’s -- we will skip over the -- you didn’t see a broken nose -- [Dep. Carbaugh:] No. [Petitioner’s counsel:] -- or any issue with the shoulder. Is that accurate? [Dep. Carbaugh:] That is accurate. [Petitioner’s counsel:] Behind the ear?

Again, you didn’t see anything behind the ear, is that accurate? [Dep. Carbaugh:] That is accurate. [Petitioner’s counsel:] Now this is a strangulation report and you had said prior that there is an allegation of strangulation. Did you see or observe, according to this form, any redness on Ms. [G.]’s neck? [Dep. Carbaugh:] No. Again, I did not make the observation. [Petitioner’s counsel:] All right.

So in regards to the neck, all of these various things, redness, scratch marks, fingernail impressions, fingerprint marks, thumbprint bruising, bruises, swelling, ligature marks, you did not observe any of those on Ms. [G.]? 9 [Dep. Carbaugh:] No. Again, when I was on-scene, I did not make contact with her right -- [Petitioner’s counsel:] But you filled out this form, right? [Dep. Carbaugh:] With -- it has my name on it. Yes. [Petitioner’s counsel:] Okay.

And then with regard to the mouth and bruising, there is again nothing checked. You didn’t see any bruising or swollen tongue or any of her hair pulled. Nothing like that. Is that accurate? [Dep.

Carbaugh:] On my part that is accurate. [Petitioner’s counsel:] And then further on down on this report -- and here is a diagram. A diagram here. I assume that is supposed to be of Ms. [G.]. Is that accurate? [Dep.

Carbaugh:] That is a -- that is a diagram of a face . . . where we show where the injuries are located at. [Petitioner’s counsel:] Okay. There are no marks on any of these examples, is that accurate? [Dep. Carbaugh:] That is correct. [Petitioner’s counsel:] So by your observations there were no marks on Ms. [G.] Is that accurate? [Dep. Carbaugh:] That is correct. [Petitioner’s counsel:] Again, just for clarification, is that your name and that is your -- [Dep.

Carbaugh:] That’s the approval. That’s my name and that’s the approval signature of the sergeant at the time. [Petitioner’s counsel:] Okay. So that is the form that you filled out? [Dep. Carbaugh:] That is the form.

Yup. On redirect examination, Dep. Carbaugh explained that he had completed the strangulation form by relying on information provided to him by Cpl. DeAngelis. 10 [The State:] When did you have the opportunity to speak to Ms. [G.]? [Dep.

Carbaugh:] I did not really speak with Ms. [G.]. [The State:] So when you filled out the form that [Petitioner’s counsel] showed you, what was that based off of? [Dep. Carbaugh:] That was based off of the information I got from [Cpl.] DeAngelis. [The State:] And is that common, that you would fill out that form that way? [Dep. Carbaugh:] Yes. When you have the initial officer arresting the defendant and taking him to central booking, that initial officer is now tied up with booking paperwork, charging applications and I was relying on [Cpl.] DeAngelis relaying information to me, and that is where I was able to fill out -- when I was able to get back to the department to fill out that paperwork. [The State:] So you never had an opportunity to speak to the victim in this case?

To speak to Ms. [G.] in this case? [Dep. Carbaugh:] That is correct. I did not. Cpl.

DeAngelis was then called to testify. During cross-examination, Cpl. DeAngelis testified that the strangulation form introduced was not the one he completed. [Petitioner’s counsel:] Your Honor, if I may again publish to the jury Defense Exhibit 1 and 2? [The Court]: You may. *** [Petitioner’s counsel:] And again, Ms. [G.] did not check any [boxes] on [Defense Exhibit 1], correct? [Cpl. DeAngelis:] So we don’t let the victim see that form.

I do the checkmarks myself. *** 11 I ask the question and then whether it’s yes, nor or not answered. [Petitioner’s counsel:] Okay. So in regard to -- just out of curiosity, in regard to the names, [Dep.] Carbaugh is up there but you are the one that actually created this [form]? [Cpl. DeAngelis:] Correct. That’s my handwriting. [Petitioner’s counsel:] Okay.

Then this is Defense Exhibit 2. Did you similarly go through this with Ms. [G.]? Or how is this filled out? [Cpl. DeAngelis:] The same way.

With Ms. [G.]. [Petitioner’s counsel:] Did you fill this out? [Cpl. DeAngelis:] I filled it out, and [Dep.] Carbaugh is the one that signed it. *** [Petitioner’s counsel:] [Y]ou were the one that filled this out and not one box is checked, is that correct? [Cpl. DeAngelis:] That’s not -- that’s [Dep.] Carbaugh’s form. That’s his handwriting.

That form was not filled out by me. I filled one out. That’s not the one that should have been entered into the case file. So that’s probably a clerical error on our part, because my boxes were checked.

Whether the paperwork got lost, I don’t know. Petitioner interrupted and asked to approach the bench where the following colloquy occurred: [The Court]: [W]hat are you asking me? If you know. I mean, besides cross[-]examining him on that issue, is there something that you are asking the Court to do? [Petitioner’s counsel:]: At this point I would just -- I am not going so far as to say mistrial kind of territory.

But I think there would be at least an instruction to say you can only consider what has been entered into evidence. 12 In lieu of an instruction, the circuit court allowed Petitioner to examine Cpl. DeAngelis outside the presence of the jury. The ensuing testimony transpired: [Petitioner’s counsel:] On a domestic violence call, how many people fill out this form? [Cpl. DeAngelis:] Typically it’s just the secondary officer if an arrest was made. [Petitioner’s counsel:] And that secondary officer is you? [Cpl.

DeAngelis:] Yes. [Petitioner’s counsel:] So it is you -- it just says that two forms were filled out, is that correct? [Cpl. DeAngelis:] Two of these forms? [Petitioner’s counsel:] Two of these forms. [Cpl. DeAngelis:] It could have -- the form that I filled out I know had checkmarks; checkmarks made in the boxes. Whether that form got lost by myself, [Dep.] Carbaugh or by Dispatch, who is -- they enter everything into [Laserfiche] and upload it.

That I don’t know. Obviously this has [Dep.] Carbaugh’s name and the date, which is correct on it. So if I had to make a guess, it’s that it was lost by [Dep.] Carbaugh and that he just checked -- [Petitioner’s counsel:] It was lost by who? [Cpl. DeAngelis:] [Dep.] Carbaugh. [Petitioner’s counsel:] Okay. [Cpl.

DeAngelis:] Because that’s the correct date . . . [b]ut I know that -- I know that I filled that form out. [Petitioner’s counsel:] But your assumption is that it was lost somewhere and that this was created? 13 [Cpl. DeAngelis:] Because that has to be included in our domestic violence packet. And that since [Dep.] Carbaugh didn’t know, he didn’t fill out any boxes. He just included the form.

He’s a new officer. *** [Petitioner’s counsel:] While I have you here outside the presence of the jury, were there any forms that -- so you had filled this out that night? [Cpl. DeAngelis:] Correct. [Petitioner’s counsel:] With Ms. [G.]? [Cpl. DeAngelis:] Correct. [Petitioner’s counsel:] And then submitted it to [Dep.] Carbaugh that night? [Cpl. DeAngelis:] Yes . . . [t]his is a strangulation form.

So it’s only used when there’s a strangulation. It’s the strangulation supplement. That packet? I then go back to the station.

I put it in [Dep.] Carbaugh’s mailbox, on his desk, whatever the case might be. It could get lost. Yes. [Petitioner’s counsel:] Okay. *** [Petitioner’s counsel:] All right. But the rest of these [forms] are what you have created and you remember seeing these? [Cpl.

DeAngelis:] Correct. I’m the one that filled them all out. [Petitioner’s counsel:] Okay. But this one? [Cpl. DeAngelis:] The back side I don’t -- yeah, I don’t know.

I don’t know what happened with the back side of this form. I know it was completed. I know the boxes were checked. You know, or fit the appropriate boxes.

And they also are to circle where they’re injured, which was not done. [Petitioner’s counsel:] Yup. Thank you. 14 The parties approached the bench and the following discussion ensued: [The Court]: I might be at a point where I am going to let you finish cross and then think on this for the night. [Petitioner’s counsel:] Okay. [The Court]: But it may be a situation where you cross[-]examine him on that issue in front of the jury. You can try and rehabilitate him based on the other forms, and here is -- because in theory that is inconsistent with what he is saying. *** I would also consider any other remedy that you might deem appropriate. [Petitioner’s counsel:] I know. *** [The Court]: And I will need to do my own research. But it is a -- I mean, it is a credibility issue. *** Now there is discovery that wasn’t had. [Petitioner’s counsel:] Right. [The Court]: But he is saying this is the first time I have seen this and that is not the form I filled out.

So I am not sure how to remedy it, other than to let you all ask your questions and let the jury figure out what they think happened. But some of that may or may not be -- I mean, he certainly can’t say what [Dep.] Carbaugh did or didn’t do. [The State]: Correct. [The Court]: You might have to recall [Dep.] Carbaugh. I don’t know. [Petitioner’s counsel:] Right. *** 15 Okay. I guess we can bring the jury back in.

I don’t know what to do at this point. I am at a loss myself. I am kind of like an upstanding guy . . . . I hold myself out to be a truthful person, and here it is and that hurts me. [The Court]: I understand.

Which is why I am going to give you overnight and we can revisit this in the morning. But for purposes of today, I -- well, I can do two things. I can either let you finish your cross[-]examination and ferret all this out. Or we can stop for the day now and then have this witness come back tomorrow and finish at that point after you have had [] time to brainstorm and -- you know, that is what I would do.

That is what I am going to do when I get off the bench. [Petitioner’s counsel:] Yeah. I would like to at least continue on here today while we are -- I hate to say while the wound is fresh, but at least while we are figuring this out together in some form or fashion. As opposed to us all coming back and then battling it out with our minds. Let’s let the truth come out.

The jury returned and Petitioner again questioned Cpl. DeAngelis. The testimony proceeded as follows: [Petitioner’s counsel:] Just to kind of get us back on track, we were discussing this [strangulation] form, is that correct? [Cpl. DeAngelis:] Yes. [Petitioner’s counsel:] You did not fill out this form, correct? [Cpl.

DeAngelis:] No. *** [Petitioner’s counsel:] Okay. So can you explain what [Dep. Carbaugh] is responsible for as it relates to paperwork? I am sorry.

What is he responsible for as it relates to the paperwork? [Cpl. DeAngelis:] He’s responsible to have everything; all the domestic violence forms signed off on by the supervisor working by the end of his shift. *** 16 [Petitioner’s counsel:] If I may, what I am showing the witness is Defense Exhibit 1. This is, I believe, and correct me if I am wrong, part of the [strangulation] form or the packet that you were talking about? [Cpl. DeAngelis:] Correct. [Petitioner’s counsel:] Okay.

Did you fill out this one? [Cpl. DeAngelis:] I did. [Petitioner’s counsel:] Why would you fill out this one but not [Defense] Exhibit 2, which is this one? [Cpl. DeAngelis:] The original [Defense] Exhibit 2 was lost. *** Paperwork gets lost . . . [m]y assumption is that [Dep.] Carbaugh -- it’s a two-page paper. That’s the back side of it that has [Dep.] Carbaugh’s signature; that it was lost and he grabbed another one, signed his name on it and submitted it for the packet so that the packet is complete. *** [Petitioner’s counsel:] You did not complete -- this specific form[?] [Cpl.

DeAngelis:] I did not complete that form. [Petitioner’s counsel:] But you had completed another form, correct? [Cpl. DeAngelis:] Correct. *** [Petitioner’s counsel:] You said you were primarily the person -- the primary officer speaking with Ms. [G.]. This is State’s [Exhibit] 4.[5] It has been already entered as such. I am publishing it to the jury.

You don’t see any marks on her[ ]wrists? You didn’t see any at the time, did you? [Cpl. DeAngelis:] Not that I remember. 5 State’s Exhibit 4 was a photo of Ms. G. taken at the scene. 17 [Petitioner’s counsel:] She didn’t seem like, you know, somebody who gets hit? You didn’t see any marks or bruises?

You don’t see any marks? Her shoulders? Nothing? [Cpl. DeAngelis:] Just the neck and chest area. *** [Petitioner’s counsel:] [W]as it just Ms. [G.] that is alleged to have been thrown down the steps[?] [Cpl.

DeAngelis:] [I]t was just [Ms. G.] that was pushed down the stairs. [Petitioner’s counsel:] No broken bones on Ms. [G.]? [Cpl. DeAngelis:] No. Just the massive lump on her leg. The next morning, Petitioner moved for a mistrial, where he argued: I am not alleging any specific misconduct by the State. I am not alleging -- but some sort of discovery -- an issue with discovery.

But, Your Honor, the fact the officer placed something into discovery that was not based upon his knowledge, or it seems another officer’s knowledge by [Cpl.] DeAngelis’s testimony, it is prejudicial to a fair trial. In this case, Your Honor, I don’t believe there is any kind of curative instruction that can be given that would “unring this bell” that is used significantly in case law; and therefore, we would be requesting a mistrial based upon the conduct of [Dep.] Carbaugh. The circuit court denied the motion, reasoning that, [t]he specific piece of evidence in this case that we will just say is missing is actually evidence that, based on the testimony now of [Cpl.] DeAngelis, would be favorable to the State. *** [If Dep.] Carbaugh did what the corporal suspects, which is he doesn’t see the form, grabs the second one and signs it and submits it so that all the pages are present, we don’t know that unless he is recalled. *** 18 The Court wants to ensure that he is available for recall today [if] necessary. *** Anyway, the page to [the strangulation form] that is now apparently missing, according to [Cpl.] DeAngelis, would have been favorable to the State. His testimony was that is not the form that I -- Defendant’s [Exhibit] 2 is not the form that he had completed, that he had in fact checked off things.

He indicated that the signatures on the bottom were correct because the reporting officer -- he said it would have been listed as the assigned officer who is assigned to that sector who would have been [Dep.] Carbaugh. So I believe that the way that I instructed yesterday is in fact the remedy, which is it is certainly much fodder for cross[-]examination. The Defense is certainly free to argue about either the credibility or the police work or, you know, however he wants to argue that testimony and that conflict in the testimony and the conflict of the evidence and the fact that there was -- according to the corporal there was this other piece of evidence[.] Petitioner then requested a curative instruction. The circuit court denied that request, relying on Patterson v. State, 356 Md. 677 , 741 A.2d 1119 (1999) and Cost v. State, 417 Md. 360 , 10 A.3d 184 (2010),6 to support its position.

Trial proceeded and Petitioner was convicted of second-degree assault. He was sentenced to ten years of incarceration with all but seven years suspended and a period of supervised probation for five years. Petitioner timely appealed to the Appellate Court. Opinion of the Appellate Court In a reported opinion, the Appellate Court affirmed Petitioner’s conviction.

Mason v. State, 258 Md. App. 266 , 297 A.3d 642 (2023). The Appellate Court held that the circuit 6 The transcript provides this case as “Kauss v. State[]” and does not provide a citation. Our review has not discovered a Maryland case under that name but Cost v. State matches the factual description provided by the circuit court. 19 court had not abused its discretion since “there was clearly no irremediable prejudice of the extreme degree that calls for a declaration of mistrial.”7 Id. at 285 , 297 A.3d at 653. The Appellate Court