Eyler, Deborah S., Kehoe, Rodowsky, Lawrence F. (Retired, Specially Assigned) JJ.
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 (1978). Two years later, this Court held 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 (1980), aff'd, 290 Md. 295 (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 (1957), and Carr v. State, 284 Md. 455 (1978), as implemented by Maryland Rule 4-263(d)(3) (2013)." 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.
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.
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. Three officers were involved in the mêlée: 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 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 (2013). The trial court indicated that it was hesitant to undertake such an effort, stating to defense counsel "[y]ou'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):
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? . . . .
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[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.
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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,  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. . . .
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[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 ...