Massey v. State

SHARER, J. Richard Jay Massey, Jr., appellant, was convicted of possession with intent to distribute a controlled dangerous substance (cocaine) and possession of cocaine, following a bench trial in the Circuit Court for Wicomico County. 1 Massey moved for a new trial and to correct an illegal sentence. After these motions were denied, he noted this appeal, raising four questions, which we have recast and reordered: 2 1. Whether the suppression court erred in denying Massey’s motion to suppress. ¹⁰⁰ 2. Whether the trial court erred by not directing the State to provide the defense with a witness’s report. 3.

Whether the trial court erred by considering evidence outside of the record. 4. Whether the trial court erred in accepting Massey’s jury trial waiver. For the reasons that follow, we shall vacate Massey’s convictions and remand for a new trial. We hold that the suppression court did not err in denying Massey’s motion to suppress.

We shall also hold, however, that the State was obligated to provide the defense with any report that was prepared by a police officer who testified as a State’s witness, and that the trial court erred by not directing the State to disclose this report. We choose to discuss the remaining issues for guidance only. BACKGROUND The charges against Massey arise from his arrest on June 18, 2004, for possession with intent to distribute cocaine and possession of cocaine. A criminal information formally charging Massey with these offenses was filed on September 24, 2004.

Unsuccessful in pretrial motions to suppress evidence, Massey elected a bench trial and, as we have noted, was convicted. We shall develop the facts as they relate, first, to the suppression issue and then to the evidentiary issues as they arose at trial. 1. Whether the suppression court erred in denying Massey’s motion to suppress. Standard of Review In reviewing the court’s disposition of a motion to suppress, “we look only to the record of the suppression hearing and do not consider the evidence admitted at trial.” In re Tariq A-R-Y, 347 Md. 484, 488 , 701 A.2d 691 (1997).

In this limited review, we consider the evidence and reasonable ¹⁰¹ inferences drawn therefrom in the light most favorable to the prevailing party, in this instance the State. Id. We review the factual findings of the motions court for clear error. Byndloss v. State, 391 Md. 462, 477 , 893 A.2d 1119 (2006).

Although we defer to the hearing judge’s findings of fact, we must make a de novo constitutional evaluation by “review[ing] independently the application of the law to those facts to determine if the evidence at issue was obtained in violation of the law[.]” See Whiting v. State, 389 Md. 334, 345 , 885 A.2d 785 (2005). Suppression Evidence A hearing on Massey’s motion to suppress was conducted on January 21, 2005. 3 Detective Ronald Marzec of the Delmar Police Department, who for over seven years has been assigned to a narcotics enforcement task force operated by the Drug Enforcement Administration, was conducting an investigation of Room 123 at the Delmarva Inn and Convention Center in Delmar. As a result of this investigation, officers arrested Takoma Griffith at about 4:00 p.m. on June 18, 2004, and charged him "with possession with intent to distribute crack cocaine. During the course of his post-arrest interview with Griffith, Marzec learned that Massey “would deliver a quantity of crack cocaine to Room 123.” With Marzec sitting next to him, Griffith telephoned Massey at about 4:30 p.m.

Marzec could hear “partial voices” on the other end of the call as Griffith spoke, but he acknowledged that he did not know the identity of the person to whom Griffith was speaking. He also admitted that no details regarding any type of drug transaction were mentioned during the telephone conversation. Griffith said “I’m ready” and the other party responded “I’m on my way.” Marzec described the telephone conversation: [Pjrior to the telephone call being placed Mr. Griffith advised me that the logistics of the phone call would just basically ..., that Mr. Griffith would state that he was ¹⁰² ready. And upon him saying that, Mr. Massey would go en route to Mr. Griffith’s location to deliver the crack cocaine.

Griffith told Marzec that this was “the normal course of business between the two of them[,]” and that they had dealt that way at least several times in the past. Marzec learned that Massey would be coming from the “Bridgeville, Coverdale area” of Delaware in either a Ford Explorer or by motorcycle. Marzec queried the Delaware Criminal Justice Information System computer and obtained a photograph of Massey and registration information about Massey’s vehicles. The detective printed out the photograph and showed it to Griffith, who confirmed Massey’s identity.

Griffith said that Massey usually took one of two routes— southbound on Route 13 or the Old Stage Road. The trip was expected to take about 25 minutes. As a part of the investigation, a “road unit” was positioned north of the state line in Delaware to look out for Massey. That “road unit” was Sergeant Michael Bond of the Delmar Police Department, who spotted Massey heading south on Route 13 and alerted Marzec.

Bond told Marzec that he would attempt to follow the vehicle and “develop probable cause for a traffic stop at that location on the highway prior to Mr. Massey arriving.” Bond was unable to justify a traffic stop, so he followed Massey while Massey first stopped for gas and then drove to the Delmarva Inn. Massey parked near Room 123, left the Explorer, and approached the door. Marzec looked out of the room’s window and saw Massey arrive and get out of the Explorer. Armed with the photograph from the Delaware computer, Marzec confirmed Massey’s identity.

Marzec said also that Bond confirmed that the Explorer’s tag number matched the registration to Massey’s Explorer. It was shortly after five o’clock when Massey knocked on the door to Room 123. He was greeted by Marzec and other officers, who took him into custody. The officers searched Massey incident to the arrest and recovered a plastic baggie with about “three and a half grams of crack cocaine.” Bond ¹⁰³ was assigned to search the Explorer and, within ten minutes, recovered another baggie “containing approximately two and a half grams of suspected crack cocaine.” In asserting that the evidence should have been suppressed, Massey contends that the information supplied by Griffith did not provide probable cause for his arrest.

We disagree, and conclude that there was ample probable cause to arrest Massey as he appeared at the door to Room 123. DISCUSSION The Fourth Amendment to the United States Constitution provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]” U.S. Const., amend. IV. “A warrantless arrest of an individual in a public place for a felony, or a misdemeanor committed in the officer’s presence, is consistent with the Fourth Amendment if the arrest is supported by probable cause.” Maryland v. Pringle, 540 U.S. 366, 370 , 124 S.Ct. 795 , 157 L.Ed.2d 769 (2003). Put another way, “[t]he legality of a warrantless arrest is measured by the existence of probable cause at the time of the arrest.” Collins v. State, 322 Md. 675, 678 , 589 A.2d 479 (1991). 4 “[T]he probable-cause standard is a ‘ “practical, nontechnical conception” ’ that deals with ‘ “the factual and practical considerations of everyday life on which reasonable ¹⁰⁴ and prudent men, not legal technicians, act.” ’ ” Pringle, supra, 540 U.S. at 370 , 124 S.Ct. 795 (quoting Illinois v. Gates, 462 U.S. 213, 231 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983) (additional citations omitted)).

Probable cause exists when the police possess reasonably trustworthy information, drawn from the totality of the facts and circumstances of each case, which supports the fair probability that contraband or evidence of a crime will be found in a particular place or that the suspect has committed a crime. See Beck v. Ohio, 379 U.S. 89, 91 , 85 S.Ct. 223 , 13 L.Ed.2d 142 (1964); State v. Wallace, 372 Md. 137, 147-48 , 812 A.2d 291 (2002), cert. denied, 540 U.S. 1140 , 124 S.Ct. 1036 , 157 L.Ed.2d 951 (2004). “Probable cause does not demand the certainty we associate with formal trials.” Illinois v. Gates, 462 U.S. at 246 , 103 S.Ct. 2317 . A law enforcement officer “may draw inferences based on his own experience in deciding whether probable cause exists.” Ornelas v. United States, 517 U.S. 690, 700 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996). “To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide ‘whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to’ probable cause.” Pringle, supra, 540 U.S. at 371 , 124 S.Ct. 795 (quoting Ornelas, supra, 517 U.S. at 696 , 116 S.Ct. 1657 ). The issue before us, therefore, is whether the information supplied by Griffith to Marzec was sufficient to establish probable cause for Massey’s arrest.

Massey asserts that the suppression court clearly erred in concluding that the informant was “trustworthy” and takes issue with the motions court’s rationale that the informant Griffith was known to the police and was motivated to cooperate. “In testing the sufficiency of probable cause for an officer’s action even without a warrant, [the Supreme Court has] held that he may rely upon information received through an informant, rather than upon direct observations, so long as the informant’s statement is reasonably corroborated by other matters within the officer’s knowledge.” Jones v. United ¹⁰⁵ States, 362 U.S. 257, 269 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (1960), overruled on other grounds, United States v. Salvucci, 448 U.S. 83 , 100 S.Ct. 2547 , 65 L.Ed.2d 619 (1980). The informant’s reliability, veracity, and basis of knowledge are relevant factors in the probable cause determination. State v. Lee, 330 Md. 320, 327 , 624 A.2d 492 (1993) (citing Winters v. State, 301 Md. 214, 227 , 482 A.2d 886 (1984)). See Illinois v. Gates, supra, 462 U.S. at 230 , 103 S.Ct. 2317 (factors are “closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is ‘probable cause[.]’ ”).

See generally, West v. State, 137 Md.App. 314, 328-33 , 768 A.2d 150 , cert. denied, 364 Md. 536 , 774 A.2d 409 (2001). Challenging the basis for police actions in this case, Massey relies primarily on Dixon v. State, 133 MdApp. 654, 758 A.2d 1063 (2000), in which this Court determined that a tip from a confidential informant did not provide police with probable cause. The informant’s information in Dixon prompted the police to search the trunk of Dixon’s car. The informant, who supposedly had provided police with information on prior occasions, called one officer to inform him that “a black male named Orville Dixon would be transporting approximately ten pounds of marijuana to the second level of a parking garage adjacent to the Nordstrom’s department store at the Montgomery Mall.” Id. at 659, 758 A.2d 1063 .

The informant also reported that Dixon would show up at about 8:15 p.m. in a dark-colored Acura and conduct a drug sale. Id. Relying upon that information, the police arrived at the parking garage and set up a surveillance. They saw the suspect car, and verified that it belonged to Dixon.

Dixon first emerged from the stairwell in the garage and started toward his car. He appeared to be looking for someone, but did not go to the car, but left the garage by the stairway. When Dixon, who was employed at the Nordstrom’s store, appeared in the garage a second time, he went to his car and sat behind the wheel. Police officers converged on his car, blocked him in, and officers removed Dixon from the car and placed him in handcuffs.

Although police saw nothing ¹⁰⁶ incriminating inside the car’s passenger compartment, an officer opened the trunk, without Dixon’s consent and without a warrant, and discovered marijuana. Dixon’s motion to suppress the results of the search was denied by the circuit court. On appeal, this Court reversed. Posing the question as “whether the police had probable cause to search appellant’s trunk[,]” we then concluded that the tip from the confidential informant did not justify the search of the trunk.

Id. at 678, 758 A.2d 1063 . Writing for this Court, Judge Hollander stressed that, in the case of a confidential informant., “evidence as to the informant’s demonstrated reliability is also vital.” Id. at 695, 758 A.2d 1063 (citing Gates, supra, 462 U.S. at 244 n. 13, 103 S.Ct. 2317 ). She explained: In this case, making our own constitutional review, as we are required to do, we conclude that the informant’s tip did not provide probable cause to search the trunk. The content of the tip, standing alone, was inadequate to furnish “a reasonable assurance of being based on firsthand observation.” ...

Moreover, it was sorely lacking in meaningful detail. Nor did the police testify to any significant corroboration of the tip. Additionally, the record with respect to the confidential informant’s reliability was woefully undeveloped____ Moreover, the kind of information provided by the tipster, such as appellant’s place of employment and his schedule, could have been known to Dixon’s co-workers, other persons employed at the Montgomery Mall, a garage attendant, personal acquaintances, or a party interested in making mischief. Therefore, the police did no more than corroborate innocuous information related by the informant.

As we have seen, “the tip must provide something more than facts or details that are readily visible to the public.” Dixon, supra, 133 Md.App. at 695-97 , 758 A.2d 1063 (citations omitted). We believe Dixon is distinguishable. We are not persuaded by Massey’s challenge to the motions court’s finding that ¹⁰⁷ Griffith was a known and trustworthy informant or his complaint about the court’s explanation that Griffith was motivated to cooperate with the expectation of leniency. Although Marzec did not explain that Griffith had provided information in the past, and thus had no “known” track record, Griffith clearly was not an “unknown” informant. “ ‘[I]t is improper to discount [out of hand] an informant’s information simply because he has no proven record of truthfulness or accuracy.’ ” United States v. Canfield, 212 F.3d 713, 719 (2d Cir.2000) (citation omitted).

On the contrary, we believe the motions court could readily infer from the totality of the circumstances that Griffith, a target of a search and seizure warrant who had his own troubles with the police, was “known” because he had been identified and provided the information face-to-face. For example, in United States v. Couch, 367 F.3d 557, 560 (6th Cir.2004), the court, in rejecting the argument that police failed to show that the provider of information was a “reliable informant,” observed that the informant’s identity was known to police, had been named in the affidavit, and could be held accountable for lying to the police. See Florida v. J. L„ 529 U.S. 266, 270 , 120 S.Ct. 1375 , 146 L.Ed.2d 254 (2000) (known informant can be held responsible). Again, Griffith was neither a confidential informant, nor an anonymous tipster.

Nor was he an innocent civilian who was motivated by a civic purpose. He was caught red-handed after police executed a search and seizure warrant for his room, and, after being “interviewed” by the police, arranged to set up a drug buy from Massey. The fact that Griffith was interviewed “face to face” by Marzec strengthens the reliability of his information. United States v. Greenburg, 410 F.3d 63, 67 (1st Cir.2005).

As noted by the Second Circuit: Here, the district court improperly discounted [the informer’s] information. [The informer], who at the time was believed to be a participant in the crime at issue, gave the information to Customs Agents face-to-face after he was ¹⁰⁸ apprehended with 142 pounds of marijuana, circumstances that ordinarily would suggest reliability. United States v. Gagnon, 373 F.3d 230, 237 (2d Cir.2004) (footnote omitted) (citing cases). See Cross v. State, 165 Md.App. 164, 185-87 , 884 A.2d 1236 (2005); see also United States v. Christmas, 222 F.3d 141, 144 (4th Cir.2000) (citing cases), cert. denied, 531 U.S. 1098 , 121 S.Ct. 830 , 148 L.Ed.2d 712 (2001). Cf.

West v. State, supra, 137 Md.App. at 331 , 768 A.2d 150 (no indication that informant had provided information for warrant face-to-face). It is also reasonable to assume that Griffith would be motivated to cooperate. The following language is instructive: Even if favorable treatment had not been offered to him, [the informant] was presumably motivated to provide information after his arrest out of hope that his cooperating would result in more lenient treatment for himself by the authorities. He could not achieve that goal if he gave false information, so the circumstances in which he provided the information further served to corroborate its reliability.

United States v. Patayan Soriano, 361 F.3d 494, 505 (9th Cir.), cert. denied, 543 U.S. 852 , 125 S.Ct. 266 , 160 L.Ed.2d 86 (2004) (citing United States v. Davis, 617 F.2d 677, 693 (D.C.Cir.1979) (informant who lies to police risks disfavor with prosecution), cert. denied, 445 U.S. 967 , 100 S.Ct. 1659 , 64 L.Ed.2d 244 (1980)). Indeed, Griffith could have faced prosecution for lying to the police, in addition to the likely forfeiture of any “break” from the prosecution. Herod v. State, 311 Md. 288, 297 , 534 A.2d 362 (1987). Judge Rodowsky also pointed out in Herod that the informant disclosed the basis of her knowledge by describing participation with the defendant in past drug transactions.

Id. at 297 , 534 A.2d 362 . In the case sub judice, Griffith told Marzec about prior dealings with Massey. See also, e.g., State v. Martinez, 150 N.CApp. 364, 562 S.E.2d 914, 916-17 (2002) (after serving warrant, police learn from now cooperative subject of warrant about two drug dealers on their way to house), appeal dismissed and discretionary review denied, 356 N.C. 172 , 568 S.E.2d 859 (2002). ¹⁰⁹ Cf. State v. Purvey, 129 Md.App. 1,15 , 740 A.2d 54 (1999) (co-defendant’s statement may provide sufficient probable cause), cert. denied, 357 Md. 483 , 745 A.2d 437 (2000).

The police were able to verify the details provided by Griffith. Although we emphasized in Dixon that “ ‘the tip must provide something more than facts or details that are readily visible to the public[,]’ ” Dixon, supra, 133 Md.App. at 697 , 758 A.2d 1063 (quoting Hardy v. State, 121 Md.App. 345, 363, 709 A.2d 168 (1998)), the reliability of Griffith’s information was enhanced when his statements about Massey’s future actions were verified and were placed within the context of his past dealings with Massey. See Herod, 311 Md. at 295 , 534 A.2d 362 . The following passage from the Supreme Court is relevant: We think it also important that, as in [Illinois v.[ Gates, “the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.” ...

The fact that the officers found a car precisely matching the caller’s description in front of the 235 building is an example of the former. Anyone could have “predicted” that fact because it was a condition presumably existing at the time of the call. What was important was the caller’s ability to predict respondent’s future behavior, because it demonstrated inside information — a special familiarity with respondent’s affairs. The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey’s Motel.

Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities____When significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop. ¹¹⁰ Alabama v. White, 496 U.S. 325, 332 , 110 S.Ct. 2412 , 110 L.Ed.2d 301 (1990) (emphasis added) (citations omitted). Compare Florida v. J. L., 529 U.S. 266, 271 , 120 S.Ct. 1375 , 146 L.Ed.2d 254 (2000) (noting that anonymous call provided no predictive information). This is not to say that every informant’s “prediction” serves to bolster a tip. The informant in Dixon advised police that Dixon would arrive at the parking garage at a certain time, driving a particular car.

As Judge Hollander pointed out, “the kind of information provided by the tipster, such as [Dixon’s] place of employment and his schedule, could have been known to Dixon’s coworkers [and many others].” Dixon, supra, 133 Md.App. at 696-97 , 758 A.2d 1063 . Certainly, some information provided by an informant may pertain to matters “ ‘[a]nyone could have “predicted[.]” ’ ” Hardy v. State, 121 Md.App. 345, 359 , 709 A.2d 168 (quoting Alabama v. White, 496 U.S. at 332 , 110 S.Ct. 2412 ), cert. denied, 351 Md. 5 , 715 A.2d 964 (1998). “Corroboration requires £an assessment of probabilities.’” United States v. Canfield, 212 F.3d 713, 719 (2d Cir.2000) (citing Illinois v. Gates, 462 U.S. at 232 , 103 S.Ct. 2317 ). And the verified corroborative details supplied by Griffith make Dixon inapposite. Police were informed that Massey would drive to the Delmarva Inn by one of two possible routes in either a green Ford Explorer or on a motorcycle, “upon Mr. Griffith telephoning [him].” Unlike Dixon, who was scheduled to work at the Nordstrom’s store, and presumably would adhere to that schedule in driving to work and parking at the garage near his store, Massey’s trip was prompted by a telephone call from Griffith.

Not long after the telephone conversation with Griffith, Massey’s green Ford Explorer was seen heading south on Route 13 toward the Delmarva Inn. Marzec verified Massey’s identity, as well as his ownership of the vehicles Griffith said he owned, by information and a photograph from the State of Delaware’s public records. Massey arrived as predicted and went directly to Griffith’s door, even leaving the Explorer’s motor running in the process. Before this, Griffith told Marzec that he and Massey ¹¹¹ had conducted similar transactions in the past, and Marzec testified that Griffith told him that the transaction would usually entail the transfer of $300 worth of drugs.

Griffith even explained to Marzec that he would tell Massey that he was “ready” and then Massey would be on his way. We are satisfied that on these facts the police had sufficient probable cause to arrest Massey. See Herod, 311 Md. at 295-97 , 534 A.2d 362 . The basis of Griffith’s knowledge was easily established because his information was grounded on his past conduct of dealing with Massey, and by the events as they unfolded in Marzec’s presence.

The reliability of his information was confirmed by the corroboration of details by the police, and his veracity was enhanced by the fact that he provided the information “face-to-face” with Marzec under circumstances that would make his information more likely to be true, viz. his arrest by the police. We find no error in the denial of the motion to suppress. 2. Whether the trial court erred, by not directing the State to provide the defense with a witness’s report. The trial court first heard testimony from Marzec, who, except for details about Griffith, essentially reiterated the account that he had provided in the hearing on Massey’s motion to suppress.

Since Massey does not question the sufficiency of the evidence, we need only recite Marzec’s trial testimony in detail where necessary to address the issues on appeal. See Martin v. State, 165 Md.App. 189, 193 , 885 A.2d 339 (2005), cert. denied, 391 Md. 115 , 892 A.2d 478 (2006). Marzec described how the police learned from Griffith that Massey would arrive at the Delmarva Inn to deliver narcotics. He elaborated on Bond’s role in observing the anticipated route that Massey would take, and in alerting officers when Massey would be on his way.

Marzec and two other officers arrested Massey as soon as he arrived at Room 123. A search of Massey’s person, incident to this arrest, produced a plastic ¹¹² baggie containing “a white rocky substance.” 5 As recounted, supra, after spotting Massey’s Explorer on Route 13 South, Bond followed Massey to the Delmarva Inn. When Marzec informed Bond that Massey had been arrested, Bond searched the Explorer, from which he recovered a plastic baggie containing crack cocaine. This evidence was admitted.

At issue here is whether Bond should have been permitted to testify even though the State failed to provide, through discovery, any report that he may have prepared. In his direct examination, there was no mention of Bond having prepared a written report of his involvement in the investigation and later in the search and seizure. Bond was asked on cross-examination whether he had prepared a report. He recalled that, while he believed that he had, he had not used it to prepare his testimony, and did not bring a copy to court.

Defense counsel took issue with the fact that a possible report prepared by Bond had not been provided by the State, as is reflected by the following: [DEFENSE COUNSEL]: Corporal [sic] Bond, part of your training includes the importance of accurately recording important details in your report, is that correct? [SERGEANT BOND]: Yes. Q. Did you file a report in this case? A. I believe so. Q. Do you have that with you here today?

A. No, I do not. Q. Do you know where it is? ¹¹³ A. I imagine it’s at the office, I don’t need it. Q. Did you review it in preparation for your trial here today? A. No. Q. You recall all the testimony that you stated today?

A. Yes, I do. Q. Did you submit a copy to the State? A. I have no idea. I didn’t do it.

Q. You didn’t do what? A. I didn’t pull a case, no, it’s not my case. Q. Well, you participated in this case? A. Yes. [DEFENSE COUNSEL]: Your Honor, there’s obviously a report out there we did not get, we have no information about any of the testimony that this particular officer is testifying to here today.

We could not have filed a motion to compel because we don’t know if it’s not been provided to us. We simply assumed that there was no report. Now that there’s a report out [there] somewhere we don’t have the opportunity to effectively cross-examine this officer. It’s a little bit of an unfair surprise.

THE COURT: First of all, the issue of the report was never brought up in his direct examination. So at first blush one can say that this is improper cross-examination. But let’s assume you’re saying it goes to his ability to perceive or recount or observe what happened on June 18, 2004. But in response to that the officer says I don’t need the report.

The only reason he would need the report would be to refresh his recollection. [DEFENSE COUNSEL]: And I would agree but respectfully I don’t think that obviates the requirement of the State to provide us with those reports in advance when a specific request was made of the State. THE COURT: But she didn’t offer the report into evidence and the officer says he does not need the report to testify, ¹¹⁴ therefore assuming you even asked for it what bearing does the report have on anything pertaining to this case? [DEFENSE COUNSEL]: Well, Your Honor, it would enable me to effectively cross-examine the officer with those events that he recorded in the report immediately after the incident. In this particular ease I asked for any and all reports which have been reduced to writing. There’s only two officers essentially involved in this case.

The one report that we have is really deficient with information to effectively cross-examine. There’s a report out here that the State apparently has or may have that’s not been provided to us. I just don’t think that’s fair, Your Honor, I don’t see how I can effectively cross-examine an officer without that report that was specifically requested. THE COURT: I’m overruling the objection.

Massey’s complaint is two-fold. He first asserts that Bond’s written report should have been disclosed and provided pursuant to Carr v. State, 284 Md. 455 , 397 A.2d 606 (1979) and Leonard v. State, 46 Md.App. 631 , 421 A.2d 85 (1980), aff'd, 290 Md. 295 , 429 A.2d 538 (1981). Additionally, Massey contends that Bond’s report should have been provided in discovery under the authority of Md. Rule 4-263(a)(2)(A). 6 The State responds in two ways. First, it asserts that Massey has waived the issue, implying that Massey is not entitled to relief because he “never took steps to verify that the report actually existed.” Alternatively, the State suggests that, assuming the matter is before us, the trial court’s error was harmless beyond a reasonable doubt. ¹¹⁵ In Carr , the Court held that the defendant had a right to obtain and use the written statements of a prosecution witness for purposes of