Riggins v. State

KEHOE, J. Nearly forty years ago, the Court of Appeals held that a defendant in a criminal case has a due process right to inspect prior written statements made by prosecution witnesses that are in possession of the State. Carr v. State, 284 Md. 455, 472-73 , 397 A.2d 606 (1979). Two years later, this Court held ⁴⁵ that this right existed independently of the State’s duties imposed by the criminal discovery rules. Leonard v. State, 46 Md.App. 631, 636-37 , 421 A.2d 85 (1980), aff'd, 290 Md. 295 , 429 A.2d 538 (1981).

This appeal requires us to apply the principles of Carr and related decisions to decide whether a prosecutor is required to provide to defense counsel copies of a use of force report prepared by an arresting officer who testified at trial. Following a jury trial in the Circuit Court for Baltimore City, John Riggins (a/k/a Sean Riggins) was convicted of disarming a police officer, resisting arrest, and second degree assault. He received consecutive sentences for each conviction. Mr. Riggins presents three contentions on appeal.

First, he argues that the trial court erred when it declined to order the prosecutor to disclose to defense counsel a use of force report pertaining to appellant’s arrest that had been prepared by a police officer who testified at trial. The State concedes that a use of force report “authored by a police officer who testified at trial [is] subject to disclosure under ... Jencks v. United States, 353 U.S. 657 , 77 S.Ct. 1007 , 1 L.Ed.2d 1103 (1957), and Carr v. State, 284 Md. 455 , 397 A.2d 606 (1979), as implemented by Maryland Rule 4-263(d)(3) (2013).” 1 The State asserts, however, that appellant’s contentions are not preserved for our review. We conclude that the issue is preserved and we agree with the parties that the report should have been disclosed.

We cannot say that the error was harmless. Therefore, we must vacate appellant’s convictions. Second, appellant contends that there was insufficient evidence to sustain his convictions for resisting arrest because the arrest itself was illegal. We find this argument unpersuasive. ⁴⁶ Third, appellant asserts that his convictions for second degree assault and resisting arrest merged, and the trial court erred by sentencing him separately for each.

This contention is mooted by our holding that his convictions must be vacated. We will vacate the judgments of the circuit court and remand this case for further proceedings. Analysis I. The Use of Force Report Appellant’s convictions arose out of an incident that occurred when several Baltimore police officers responded to a complaint that a man was selling drugs in a vacant home located at 612 North Cumberland Street. When the officers arrived at the house, they observed appellant standing in the doorway.

When appellant saw the police, he attempted to flee. This resulted in a physical altercation during which appellant was struck with a baton. 2 Three officers were involved in the mélée: Detective Jeffrey Lilly and Officer Carlos Moorer, both of whom testified at appellant’s trial, and an otherwise unidentified “Officer Golimowski,” who did not. The Baltimore City Police Department requires its officers to prepare “use of force” reports when the officer uses physical force in an encounter with a member of the public. The record before us indicates that the Department maintains these reports in the officer’s personnel file, and does not disclose the documents to third parties.

Moorer prepared a use of force report after appellant’s arrest. The issue before us is whether the trial court erred when it denied appellant’s motion to require the prosecutor to provide him with a copy of Moorer’s statement. Defense counsel first raised the issue of disclosure of the use of force reports during pre-trial discovery. On October 5, 2012, defense counsel sent an email to the prosecutor requesting disclosure of the use of force reports, in compliance with ⁴⁷ the State’s continuing discovery obligations.

A few days later, the prosecutor responded, informing defense counsel that she did not have access to that information. The prosecutor advised defense counsel that “[t]he proper way” to obtain the use of force reports was to subpoena the Police Department. The prosecutor also informed defense counsel that the use of force reports are “part of the personnel file and are not routinely disclosed.” Defense counsel then served subpoenas on the Department. The Department’s custodian of records responded on February 15, 2012.

The documents forwarded with the response did not include use of force reports from any of the officers involved with appellant’s arrest. Defense counsel did nothing more to obtain the use of force reports until the first day of trial, July 15, 2013. On the morning of trial, the court addressed preliminary matters, selected the jury, and then recessed for lunch. It was not until the court reconvened after the lunch recess, but before the jury entered the courtroom, that defense counsel raised the issue of the State’s failure to disclose the use of force reports.

Defense counsel requested that the court conduct an in camera examination of the use of force reports in light of the Court of Appeals’ opinion in Fields v. State, 432 Md. 650 , 69 A.3d 1104 (2013). 3 The trial court indicated that it was hesitant to undertake such an effort, stating to defense counsel “[yjou’re telling me as the jury’s literally standing in the hall about an incident that could’ve been and should’ve been dealt with earlier today[.]” The following colloquy then took place (emphasis added): ⁴⁸ THE COURT: ... You’re saying—you’re not asking for the results of an investigation. You’re not asking this court to look at what was said about the officers. You’re just saying you want a report that they wrote, correct? ifc & % [DEFENSE COUNSEL]: Yes, and when requested of the State of the documents [sic], their position was that it is part of the personnel file.

THE COURT: Well, that may be true or not, that’s not the issue. The point is, your subpoena goes to the custodian of records. And, whatever the State should turn over to you in discovery, again, is a different issue, so. * * * * And, you’re saying that the State has told you that it’s somewhere else, and it’s something that they did not turn over in discovery and that they should have, certainly. Another discovery violation.

Again, if it’s what’s required. My point to you is, that should’ve all been done beforehand. You knew in January when you sent the subpoena out, and whenever, I don’t know, sometime in October 2012,[ 4 ] that you weren’t getting the documentation. So, your recourse would’ve been to go to the discovery Judge; that not done that [sic], and doing this at this late hour, is problematic to the Court.... * * * * [Y]ou have not brought [the Department’s failure to comply with the subpoena] to the discovery Judge, where you had the opportunity to do this.

To do this now at trial is, again, as I stated is problematic. I note your objection. We’re going to move on. I note your objection, and I will— [DEFENSE COUNSEL]: May I just make— THE COURT: You can in one second, hold on.... ⁴⁹ THE COURT: Okay, all right.

What else do you want to say.... [DEFENSE COUNSEL]: Essentially, that the State’s duty to disclose, is ongoing. And, we are not in a position where we’re asking for a postponement. We’re simply asking that the Court order the State to produce those documents. And, we’re not seeking to halt the trial in any way.

We were just simply asking that the State produce these documents. THE COURT: Well, now, that’s a different issue. We are at a point where you are asking them to produce something; they’re saying it’s not within their purview. Maybe that’s true, maybe it’s not.

If we find—if we go forth and we find that the Court is wrong, which is possible—then, if Mr. Riggins is found guilty.... then there’s a perfect issue on appeal. I’m going—I’m a Trial Court. I’m going to proceed with the trial. I believe that those discovery issues should’ve been resolved in a different way.

I agree that discovery is always ongoing, and it’s always on the State to provide information. But, since it was requested, not turned over; and, again, the reason allegedly—and, again, this was presented to the Court, that it is within the police department; the State doesn’t have it. The Court of Appeals will listen to that argument, if it comes to that. But, right now, the motion to order the State to turn over use of force reports that may exist that were requested in discovery, but then again not brought to the Court’s attention about any discovery violation is denied....

In order to clarify the record, the trial court then asked the prosecutor whether she “[had] a copy of what [defense counsel is] referring to?” The prosecutor responded: “I do not have a copy of it, Your Honor. I’ve never seen these documents. I don’t know anything about them.” The trial court directed that the jury be brought into the courtroom and trial commenced. ⁵⁰ The State’s only witnesses were Lilly and Moorer, two of the officers involved in appellant’s arrest. Moorer provided detailed testimony as to appellant’s actions.

On cross-examination, defense counsel asked Moorer if he had prepared a use of force report and if “that report essentially depicted ... what occurred” at the time of appellant’s arrest. Moorer answered both questions in the affirmative. Moorer further testified that he did not have a copy of the report with him at trial. Defense counsel did not ask to see the report or object at that time to the reports’ unavailability. 5 Appellant contends that “[t]he trial court abused its discretion by not ordering the State to turn over Officer Moorer’s” use of force report.

For its part, the State concedes that the court erred but, as we have said, contends that appellant’s contentions are not preserved for review. A brief tour of the legal landscape will assist in assessing the State’s preservation argument. (1) A Defendant’s Right to Inspect Pre-Trial Statements by Prosecution Witnesses: Jencks v. United States, 353 U.S. 657 (1957); Carr v. State, 284 Md. 455 (1978); and Leonard v. State, 46 Md.App. 631 (1980), aff'd, 290 Md. 295 (1981). The opportunity to cross-examine a prosecution witness based on a prior written statement about the events for which the accused is on trial protects the right of confrontation.

In the landmark decision Jencks v. United States, 353 U.S. 657, 666-67 , 77 S.Ct. 1007 , 1 L.Ed.2d 1103 (1957), the Supreme Court reversed convictions because the Government refused to allow defense counsel to inspect written reports made by two prosecution witnesses. Rejecting the Government’s argument that the accused had to establish inconsistency between the contents of the reports and the witnesses’ trial testimony before inspection was required, the Court held that: ⁵¹ We hold ... that the petitioner is entitled to inspect the reports to decide whether to use them in his defense. Because only the defense is adequately equipped to determine the effective use for purpose of discrediting the Government’s witness and thereby furthering the accused’s defense, the defense must initially be entitled to see them to determine what use may be made of them. Justice requires no less.

Id. at 668-69 , 77 S.Ct. 1007 (footnotes omitted). The Court of Appeals adopted the Jeneks disclosure principles in Carr v. State, 284 Md. 455, 472-73 , 397 A.2d 606 (1978). At issue in Carr was whether the trial court erred in denying a defense request to inspect a signed statement made by a prosecution witness on the morning after the shooting for which the defendant was on trial. The writing contained statements inconsistent with the witness’s testimony.

Id. at 458 , 397 A.2d 606 . The Carr Court explained: Every skilled trial advocate knows the crucial importance in such situations of cross-examination. Effective cross-examination here made it necessary that defense counsel be permitted to directly confront the witness with his inconsistent prior statement. To deny to defense counsel the tool necessary for such adequate cross-examination under these circumstances amounts in our view to a denial to the defendant of due process of law.

Hence, a new trial is mandated. Id. at 472-73 , 397 A.2d 606 . In Leonard v. State, 46 Md.App. 631, 637-38 , 421 A.2d 85 (1980), aff'd, 290 Md. 295 , 429 A.2d 538 (1981), a victim testified on cross-examination that she had given a written statement to the police, whereupon defense counsel immediately requested “a copy of that[.]” 46 Md.App. at 635 , 421 A.2d 85 . The prosecutor objected, stating that “this is the first time [defense counsel] has formally asked me for this document,” that he was conducting “a fishing expedition,” and that there was no foundation for admitting the statement as a prior inconsistent statement.

Id. The trial court reviewed the ⁵² statement, found “no exculpatory material in it,” and refused to permit defense counsel to inspect it. Id. at 636-37 , 421 A.2d 85 . This Court reversed, explaining that “Carr makes clear ... that a defendant’s right, at trial, to inspect the prior statement of a State’s witness who has testified is not necessarily limited (1) by the rules pertaining to pretrial discovery, or (2) to statements that are merely exculpatory.” Id. at 637 , 421 A.2d 85 . “When confronted with the actual testimony of a critical witness and the knowledge that the witness has given a prior statement bearing on a material issue in the case,” the right to inspect that statement protects the defendant’s right to confront the witness.

Id. at 637-39 , 421 A.2d 85 . 6 The reasoning and holdings of Carr and its progeny are reflected in Maryland’s criminal pre-trial discovery rule. Md. Rule 4-263(d)(3) states that a State’s Attorney must disclose “all written statements of [a State’s "witness] that relate to the offense charged[.]” The State’s Attorney must use “due diligence to identify all of the material ... that must be disclosed under this Rule.” Rule 4-263(c)(l). Moreover, “[t]he obligations of the State’s Attorney ... extend to material and information ... in the possession or control of the attorney ... [and] any other person who ... has reported to the attorney’s office in regard to the particular case.” Rule 4-263(c)(2). The State’s Attorney must provide this information “[without the necessity of a request” from defense counsel.

Rule 4-263(d). (2) A Defendant’s Right to Inspect Otherwise Confidential Records: Robinson v. State, 354 Md. 287 (1999); Zaal v. State, 326 Md. 54 (1992); and Fields v. State, 432 Md. 650 (2013). The State’s obligation to provide pre-trial written statements by witnesses extends to police records that are other ⁵³ wise confidential. In Robinson v. State, 354 Md. 287 , 730 A.2d 181 (1999), the Court considered whether Carr and other decisions required disclosure of written statements made by police officers in the course of an internal affairs division investigation pertaining to Robinson’s arrest.

During trial, the court reviewed the statements in camera, but refused to let defense counsel see them, on the ground that the officers had been exonerated as a result of the investigation. Id. at 292-93, 730 A.2d 181 . At both the trial and appellate levels, the State argued that the records were not in the prosecutor’s possession, asserting that “because the records are confidential ... the prosecutor was not entitled to them and therefore not in possession of them.” Id. at 306 , 730 A.2d 181 (internal quotation marks omitted). The Court of Appeals did not agree: Confidentiality does not ordinarily negate possession, actual or constructive.

In other words, that a statement may be confidential goes to its discoverability, rather than to who possesses it. In this State, each major police department has an IAD division. Consequently, because that division is a part of the police, its records are in the possession of the police. And if the police is an arm of the prosecution, it follows that the records are also constructively in the possession of the prosecution....

Id. at 309 , 730 A.2d 181 . The Court held that, even though the internal affairs records were confidential and “not, on that account, shared with, or readily available to, the prosecution[,]” neither the police department’s claim of confidentiality, nor the prosecutor’s claim of inaccessibility could defeat the accused’s right to review them. Id. at 309-13 , 730 A.2d 181 . The Court held that the trial court erred in conducting an in camera review of the statements.

Instead, defense counsel should have been permitted to inspect the statements at trial, in accordance with “the Jencks/Carr/Leonard line of cases.” Id. at 312 , 730 A.2d 181 . The Court concluded: In this case, the defendant has a particularized need for access to the officers’ statements, to test the officers’ trial testimony. On the other hand, the officers have been ⁵⁴ exonerated by the IAD investigation; thus, any privacy interest in their statements that may have existed is no longer applicable. Id. at 313 , 730 A.2d 181 .

The appropriate procedure can vary according to the nature of the documents in question. In Zaal v. State, 326 Md. 54, 83-87 , 602 A.2d 1247 (1992), the Court held that, before inspecting the educational records of an alleged victim of child abuse, the defendant was required to show a need for pre-trial disclosure, and once that need was established, the trial court was to review the records in camera to strike a balance between the victim’s privacy interest and the defendant’s right to a fair trial. In Fields v. State, 432 Md. 650 , 69 A.3d 1104 (2013), the issue was a defendant’s access to records of an IAD investigation into allegations that two police witnesses had falsified their time sheets. After reviewing summaries of the records in camera, the trial court refused to allow defense counsel to inspect them.

Id. at 663 , 69 A.3d 1104 . The Court of Appeals recognized that “ ‘internal affairs records involving alleged administrative rule violations’ by police officers are ‘personnel records’ under [the Maryland Public Information Act],’ ” which generally “are ‘mandatorily exempt from disclosure by the custodian of records[.]’ ” Id. at 666 , 69 A.3d 1104 . That notwithstanding, the Court explained that “[a] person facing criminal charges may be entitled nonetheless to discovery of confidential personnel records[,]” because even a legitimate “confidentiality interest” in such material “must yield, in the appropriate case, to the defendant’s interest in having an opportunity to mount a defense and confront the witnesses against him.” Id. at 666, 672 , 69 A.3d 1104 (citing Robinson, 354 Md. at 308 , 730 A.2d 181 ). The Court repeated its “prior admonition in Zaal that a court in reviewing material for discovery purposes may deny a defendant any form of access to the material only if nothing in it, ‘in anyone’s imagination, [could] properly be used in defense or lead to the discovery of usable evidence.’ ” Id. at 670, 69 A.3d 1104 (quoting Zaal, 326 Md. at 88 , 602 A.2d 1247 ).

The Fields Court held that “the ⁵⁵ motion court, at a minimum, had the obligation to review the internal affairs files, not simply the summaries, to decide whether the files contained anything ‘even arguably relevant and usable’ by the defense to impeach the detectives and, only if the answer ... [is] ‘no,’ then ‘deny the defendant total access to the records.’ ” Id. at 670-71 , 69 A.3d 1104 (quoting Zaal, 326 Md. at 88 , 602 A.2d 1247 ) (emphasis in Fields). Collectively, these authorities underscore several principles that are pertinent to the case before us. First, “the significance, to an accused, of determining whether a witness’ trial testimony is inconsistent with the witness’ prior written statement on the subject” establishes a “particularized need” for disclosure of otherwise confidential records related to the accused’s arrest. Robinson, 354 Md. at 301 , 730 A.2d 181 .

Second, at least as regards witness statements made in the course of internal investigations that have been completed, the police witness no longer has a sufficient privacy interest in the statement to warrant non-disclosure. Id. at 313 , 730 A.2d 181 . Third, in other situations, the court—and not the prosecutor or the police department—is to decide whether disclosure is appropriate, and the court should order disclosure if the records contain information “even arguably relevant and usable” by the defendant. Fields, 432 Md. at 670 , 69 A.3d 1104 ; Zaal, 326 Md. at 88 , 602 A.2d 1247 .

Finally, statements by police officer witnesses are in the constructive possession of the prosecutor. Robinson, 354 Md. at 311 , 730 A.2d 181 . With these lessons in mind, we return to the case before us. (3) The Trial Court’s Ruling.

Although the trial court “[absolutely agree[d]” with defense counsel that any use of force reports written by the officers involved in arresting appellant “were not immune from discovery,” the court focused on appellant’s failure to seek pretrial relief for the State’s non-disclosure. In our view the colloquy between the court and counsel reveals misunderstandings about the State’s disclosure obligations both in pretrial discov ⁵⁶ ery and during trial, under the Jencks-Carr-Leonard and Robinson-Fields lines of cases. We explain.