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 reaffirmed 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 characterized a mistrial as a discretionary and “extraordinary remedy
that should only be resorted to under the most compelling of circumstances.” Id. at 274,
297 A.3d at 646.
In observing that the case at bar was “remarkably parallel” to Raynor v. State, 201
Md. App. 209, 228,
29 A.3d 617, 628 (2011), the Appellate Court noted that Raynor
approved the refusal to grant a mistrial where the circuit court found “no deliberate
discovery violation by the State.”
Id. at 280–81, 297 A.3d at 650 (emphasis omitted).
Following from this, the Appellate Court opined that:
[The circuit court’s] finding that the glitch in the present case was similarly
an inadvertent mistake was similarly not clearly erroneous. [Its] final ruling
that a mistrial would not be declared, therefore, was accordingly not an abuse
of discretion. . . .
That finding that the failure to check the boxes (or properly to report that
some of the boxes had been checked) had been an inadvertent error and not
an instance of a bad faith effort to subvert justice could in and of itself be
dispositive of our holding that [the circuit court] did not abuse [its] discretion
in denying the mistrial motion.
7
Before the Appellate Court, Petitioner raised the denial of his request for a curative
instruction. See Petitioner’s brief in the Appellate Court, 9 (“[T]he [circuit] court . . .
abused its discretion by denying both [Petitioner]’s motion for a mistrial and his request
for a curative instruction.”) (emphasis added). The State, albeit in limited fashion,
responded to this contention. See State’s brief in the Appellate Court, 2 (“[Petitioner]
argues that the [circuit] court erred in denying his mistrial motion and motion for a curative
instruction[.] This Court should reject his argument.”) (emphasis added). In its opinion,
the Appellate Court does not address the denial of Petitioner’s request for a curative
instruction.
20
Id. at 281–82, 297 A.3d at 650–51. In analyzing whether Petitioner suffered prejudice by
the discovery violation, Id. at 282–85, 297 A.3d at 651–53, the Appellate Court observed
that the alleged prejudice was not the failure of the State to disclose the original
strangulation form, but rather the “correction of that error.” Id. at 282, 297 A.3d at 651.
The Appellate Court held that Petitioner “suffered no harm from the error. The error
itself was to the obvious detriment of the State and to the undeserved advantage of the
appellant.” Id. at 283–84, 297 A.3d at 652. The Appellate Court reasoned that Petitioner,
“who had at least temporarily, benefited from an error, lost that benefit when the truth came
out. If that was prejudice, it was very [limited] prejudice. He was denied the continued
enjoyment of an error in his favor.” Id. at 284, 287 A.3d at 652. The Appellate Court
concluded that the circuit court “acted with appropriate restraint” when not ordering a
mistrial. Id. at 285, 297 A.2d at 653. Petitioner timely appealed and this Court granted
certiorari. Mason v. State, 486 Md. 147,
303 A.3d 964 (2023).
DISCUSSION
Standard of Review
“The circuit court is vested with broad discretion in administering discovery.
Therefore, this Court reviews for abuse of discretion a circuit court’s decision to impose,
or not impose a sanction for a discovery violation.” Alarcon-Ozoria v. State, 477 Md. 75,
90–91,
266 A.3d 313, 321 (2021) (cleaned up). “[A]n abuse of discretion should only be
found in the extraordinary, exceptional, or most egregious case.” Wilson v. John Crane,
Inc.,
385 Md. 185, 199,
867 A.2d 1077, 1084 (2005). “[T]he [circuit] court’s decision must
be well removed from any center mark imagined by the reviewing court and beyond the
21
fringe of what that court deems minimally acceptable.” Devincentz v. State, 460 Md. 518,
550,
191 A.3d 373, 391 (2018) (quotation marks and citation omitted). “We review the
trial and intermediate appellate courts’ legal conclusions, however, nondeferentially.”
Anderson v. Burson,
424 Md. 232, 243,
35 A.3d 452, 459 (2011).
Inadvertent Nature of Non-disclosure is Not Dispositive in the Decision to Grant or
Deny a Mistrial.
Petitioner relies on Williams v. State, 364 Md. 160, 177,
771 A.2d 1082, 1092
(2001),8 to argue that allowing inadvertent discovery violations to escape sanction would
allow “State’s Attorneys [to] slip beyond the grasp of discovery rules by claiming
ignorance, and thereby force the defendant to enter trial unaware of the evidence to be
offered against him.” In response, the State argues that the Appellate Court recognized
that the inadvertence of the discovery violation was not dispositive and that the Appellate
Court conducted an analysis of the prejudice suffered by Petitioner. Although we
recognize that a statement in the Appellate Court’s decision could be read to suggest that
inadvertence would alone be sufficient to reject sanctions, we agree with the State that the
Appellate Court did not ultimately rule on that basis. Instead, the Appellate Court
proceeded to analyze whether the Petitioner suffered prejudice and rendered its holding
based on its assessment of a lack of prejudice.
We have held that the circuit court has discretion whether to order sanctions
following a discovery violation. See, e.g., Hutchins v. State, 339 Md. 466, 475,
663 A.2d
8
Williams has been abrogated on unrelated grounds by State v. Jones, 466 Md. 142,
216 A.3d 907 (2019).
22
1281, 1286 (1995) (“[R]emedy under . . . the discovery rule is within the sound discretion
of the trial judge.”); Alarcon-Ozoria, 477 Md. at 108, 266 A.3d at 331–32 (“When a
discovery violation comes to light in the course of trial, whether any sanction is to be
imposed and, if so, what it is to be, is in the first instance committed to the discretion of
the trial judge.”) (cleaned up). The exercise of discretion requires evaluating whether
prejudice was suffered by the non-offending party. See, e.g., Warrick v. State,
302 Md.
162, 173,
486 A.2d 189, 194 (1985) (“The exercise of that discretion includes evaluating
whether a discovery violation has caused prejudice.”); Alarcon-Ozoria,
477 Md. at 108,
266 A.3d at 332 (same); 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.”).
Here, the Appellate Court opined “[t]hat finding . . . the failure to check the boxes
(or properly to report that some of the boxes had been checked) had been an inadvertent
error . . . could in and of itself be dispositive of our holding that [the circuit court] did not
abuse [its] discretion in denying the mistrial motion.” Mason, 258 Md. App. at 282, 297
A.3d at 651 (emphasis added). As Warrick, Alarcon-Ozoria, and Thomas hold, prejudice
must be considered when the circuit court exercises discretion whether to impose a sanction
following a violation of the discovery rules. It was error for the Appellate Court to state
that inadvertence could be dispositive of a sanction analysis under Maryland Rule 4-
263(n).9 Inadvertence may be a factor in a court’s decision whether to impose sanctions
9
Maryland Rule 4-263(n) governs applicable sanctions following a discovery
(continued . . .)
23
and, if so, which sanctions to impose. But the mere fact that a discovery violation was
inadvertent does not remove the trial court’s obligation to determine whether another party
was prejudiced by the violation and, if so, what sanctions might be necessary to remedy
that prejudice.
“Error Correction” May Support the Decision Not to Impose a Sanction Barring the
Introduction of Evidence Not Disclosed During Discovery.
Petitioner relies on Williams to argue that information not properly disclosed in
discovery should be inadmissible at trial, where contradictory information is provided
instead. Petitioner points to the facts in Williams, where the State asserted prior to trial that
an officer could not identify the defendant but during trial the officer identified the
defendant. Petitioner contends his case is similar to Williams as he was “surprised by trial
evidence that contradicted more favorable information that he had received pre-trial and
relied on at trial.” The State responds that Williams demonstrates that the testimony
contradicting the strangulation form supplied during discovery was not itself a discovery
(. . . continued)
violation and provides in full that
[i]f at any time during the proceedings the court finds that a party has failed
to comply with this Rule or an order issued pursuant to this Rule, the court
may order that party to permit the discovery of the matters not previously
disclosed, strike the testimony to which the undisclosed matter relates, grant
a reasonable continuance, prohibit the party from introducing in evidence the
matter not disclosed, grant a mistrial, or enter any other order appropriate
under the circumstances. The failure of a party to comply with a discovery
obligation in this Rule does not automatically disqualify a witness from
testifying. If a motion is filed to disqualify the witness’s testimony,
disqualification is within the discretion of the court.
24
violation. The State contends Williams held that the State’s failure to disclose pretrial
identification was the discovery violation, not the in-court testimony, which revealed the
discovery violation.
Maryland Rule 4-263(n) provides in relevant part, “[i]f at any time during the
proceedings the court finds that a party has failed to comply with this Rule or an order
issued pursuant to this Rule, the court may . . . strike the testimony to which the undisclosed
matter relates[.]” (Emphasis added). As discussed above, whether to order sanctions
following a discovery violation is a discretionary exercise by the circuit court. E.g.,
Thomas, 397 Md. at 570,
919 A.2d at 57 (“[T]he presiding judge has the discretion to select
an appropriate sanction, but also has the discretion to decide whether any sanction is at all
necessary.”). Generally, the circuit court should consider imposing the least severe
sanction and “[e]xclusion of evidence for a discovery violation is not a favored sanction”
reserved for “extreme cases.”
Id. at 572–73, 919 A.2d at 58–59. In accordance with
Thomas, the circuit court may choose whether to impose a sanction following a discovery
violation, and may allow the admission of evidence not disclosed during discovery, within
the exercise of sound discretion. Accordingly, under appropriate circumstances, “error
correction”—by which we understand Petitioner to mean a trial court permitting a party to
introduce new evidence that contradicts evidence that the party previously had provided in
error—could justify the circuit court admitting undisclosed evidence.
Petitioner’s reliance on Williams is misplaced. In Williams, we held that the circuit
court erred in admitting the identification of a defendant where “the trial judge made no
specific finding as a matter of law that the State violated the discovery rule, and therefore
25
he exercised no discretion in fashioning a remedy for the discovery violation.” 364 Md. at
178,
771 A.2d at 1093 (emphasis added). Unlike Williams, in the case at bar, the circuit
court noted a discovery error before proposing several options to address the error. This
recognition takes this case away from Williams and returns our focus to whether the circuit
court abused the discretion it exercised. See
id.,
771 A.2d at 1092 (“The remedy . . . for a
violation of the discovery rule is, in the first instance, within the sound discretion of the
trial judge.”). As we discuss below, we hold the circuit court did not abuse its discretion,
given its finding that the discovery error proved beneficial to Petitioner. Thus, we hold
that mere recognition of a discovery error does not require exclusion of associated
evidence. The circuit court had the discretion to allow evidence regarding the missing form
to test the credibility of the testifying officers.
The Circuit Court Did Not Abuse its Discretion.
Petitioner argues that he was prejudiced by the State’s discovery violation because
he relied at trial on the incomplete form provided to him during discovery, which also
hampered his ability to engage in informed plea negotiations. Petitioner relies on Thomas
to assert that a defendant suffers prejudice where they experience unfair surprise at trial.
He argues the mid-trial discovery of the original strangulation form came as a surprise to
him. Petitioner also contends the prejudice he sustained could not have been cured by the
circuit court’s proposed cross-examination and that a mistrial was necessary. Petitioner
further argues the circuit court’s reliance on Patterson and Cost to deny his request for a
curative instruction was an abuse of discretion, given their inapplicability to Petitioner’s
case.
26
The State relies on Kosh v. State, 382 Md. 218, 226,
854 A.2d 1259, 1264 (2004),
to argue that the determining factor when considering a mistrial is whether the prejudice
was so substantial as to deprive the defendant of a fair trial. The State argues that the
discovery violation was beneficial to Petitioner because it called into question Ms. G.’s
version of events and damaged the credibility of Dep. Carbaugh. The State further argues
that Petitioner used the contradiction between the strangulation form and the testimony in
his closing remarks.
This Court affords wide discretion to a circuit court in its evaluation of prejudice
from a discovery error because
the judge is in the best position to evaluate it. The judge is physically on the
scene, able to observe matters not usually reflected in a cold record. The
judge is able to ascertain the demeanor of the witnesses and to note the
reaction of the jurors and counsel to inadmissible matters. That is to say, the
judge has [their] finger on the pulse of the trial.
State v. Galicia, 479 Md. 341, 385,
278 A.3d 131, 156 (2022), reconsideration denied
(Aug. 10, 2022), cert. denied,
143 S. Ct. 491,
214 L. Ed. 2d 280 (2022). We find an abuse
of discretion in the egregious cases where the circuit court has moved beyond the fringe of
minimal acceptability. Wilson,
385 Md. at 199,
867 A.2d at 1084; Devincentz,
460 Md. at
550,
191 A.3d at 391.
Maryland Rule 4-263(d)(3)(C) requires the disclosure of “all written statements of
the [State’s] witness that relate to the offense charged[.]” Failure by the police to turn over
documents to prosecutors, who in turn, fail to submit those documents to the defense, is a
discovery violation. Robinson v. State, 354 Md. 287, 304,
730 A.2d 181, 190 (1999).
Maryland Rule 4-263(n) provides, in relevant part, that “[i]f at any time during the
27
proceedings the court finds that a party has failed to comply with this Rule or an order
issued pursuant to this Rule, the court may . . . grant a mistrial[]” or other relief. (Emphasis
added). The circuit court has discretion whether to order sanctions following discovery
violation. E.g., Hutchins, 339 Md. at 475,
663 A.2d at 1286.
Specifically, “[t]he decision to declare a mistrial is an exercise of the trial judge’s
discretion and is entitled to great deference by a reviewing court[,]” but the circuit court
may exercise its discretion to declare a mistrial “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) (cleaned
up). Regarding Petitioner’s requested curative instruction, “[a]s 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 discovery rules seek to protect all parties from surprise, and in the case of a
criminal trial, the defendant is prejudiced only where they are unduly surprised and thereby
not afforded an opportunity to prepare a proper defense. Thomas, 397 Md. at 567, 570–
71, 574,
919 A.2d at 55, 57–59; see also Johnson v. State,
360 Md. 250, 265,
757 A.2d
796, 804 (2000) (“We have explained that the rule serves dual purposes. In terms of
fundamental fairness, broad discovery aids the defendant in preparing his or her defense
and protects him or her from surprise at trial.”). Ultimately, “[c]riminal defendants have
the right to a fair, yet not a perfect, trial.” State v. Payton,
461 Md. 540, 559,
195 A.3d
1249, 1260 (2018).
First, we disagree with Petitioner’s contention that he was entitled to a mistrial.
“[T]o determine manifest necessity to declare a mistrial, the trial judge must weigh the
28
unique facts and circumstances of each case, explore reasonable alternatives, and determine
that no reasonable alternative exists.” Hart, 449 Md. at 277,
144 A.3d at 627 (cleaned up).
In Hart, the circuit court declared a mistrial when the defendant was involuntarily absent
from the courtroom.
Id. at 256–57,
144 A.3d at 614. We held “that [a] manifest necessity
did not exist, and the trial judge abused her discretion in declaring a mistrial” where
“[g]ranting a short continuance . . . was feasible and would have cured the problem
associated with proceeding in [the defendant]’s absence.”
Id. at 278, 281,
144 A.3d at 627,
629.
Thomas and Silver v. State, 420 Md. 415,
23 A.3d 867 (2011), are also instructive.
In Thomas, we held that the defendant “ha[d] failed to demonstrate any prejudice he ha[d]
suffered as a result of the delay in disclosure[]” where he learned only a week before trial
of a witness testifying for the State.
397 Md. at 574,
919 A.2d at 59. We reasoned that the
timing of the discovery “afford[ed] defense counsel an opportunity to interview the witness
and to prepare for cross-examination[]” but that the defendant “requested only that the
[circuit] court exclude the evidence.”
Id. at 572,
919 A.2d at 58. Silver examined the
prejudice from the mid-trial “surprise” discovery of a report authored by a testifying
witness and held that
it [was] hard to see how this information ‘surprised’ or ‘prejudiced’ [Mr.
Silver’s] case . . . [where] Mr. Silver [was] given time to consider this
testimony, an opportunity to cross-examine the State’s witnesses . . . and the
opportunity to call his own witness[,] . . . [and] if [Mr.] Silver’s counsel was
surprised . . . this testimony was but one of many indicia of [Mr.] Silver’s
ownership that the State introduced at trial.
29
420 Md. at 433–34, 23 A.3d at 877–78. While this particular evidence was surprising, the
defendant did not suffer prejudice from what was cumulative evidence adduced from other
sources. Id., 23 A.3d at 877–78.
Similar to Thomas and Silver, Petitioner fails to demonstrate that he was prejudiced.
Petitioner argues Cpl. DeAngelis’s testimony on the undisclosed strangulation form
prejudiced him by undercutting his use of the blank form supplied during discovery. He
contends that his trial strategy depended in significant part on using the absence of
documented injuries on the strangulation form to undermine the testimony of Ms. G. and
the officers, which was reflected in his cross-examination of Dep. Carbaugh on that issue.
He argues that the later discovery that the form was not accurate undermined the credibility
of that defense in the eyes of the jury.
However, the circuit court concluded that the discovery violation—the failure to
turn over the form actually completed by Cpl. DeAngelis—operated to Petitioner’s benefit,
both because the jury never saw that form and because the inconsistency between the
testimony of the two officers provided an additional basis for defense counsel to question
the credibility and sufficiency of the evidence against him. In other words, with the
opportunity to have viewed the entirety of the proceedings and the presentation of evidence
in the case, the circuit court concluded that Petitioner was aided, not prejudiced, by the
State’s conduct. We find no abuse of discretion in that conclusion.
During testimony outside the presence of the jury, Petitioner elicited from Cpl.
DeAngelis that
30
the form that I filled out I know had checkmarks; checkmarks made in the
boxes . . . [b]ut I know that -- I know that I filled that form out.
…
I don’t know what happened with the back side of this form. I know it was
completed. I know the boxes were checked.
The circuit court offered Petitioner a continuance as an opportunity to prepare for
how to address the discovery error. Petitioner chose to forgo the offered recess and instead
“let the truth come out.” Before the jury, Petitioner elicited from Cpl. DeAngelis
substantially similar testimony, including that Cpl. DeAngelis had observed marks on “the
neck and chest area[]” of Ms. G. and that Ms. G. had a “massive lump on her leg.” The
circuit court also ensured that Dep. Carbaugh was made available for recall, should
Petitioner have wished to cross-examine him further in light of Cpl. DeAngelis’s
contradictory testimony about the form, but Petitioner never availed himself of the
opportunity.
Like in Silver, Petitioner had many opportunities to rectify whatever surprise he
perceived and we do not see unfair prejudice where he chose instead to elicit the testimony
he now challenges. Petitioner’s strategic decisions do not demonstrate a “manifest
necessity” for a mistrial and the circuit court’s refusal to grant a mistrial is not the egregious
case where this Court finds an abuse of discretion. Hart, 449 Md. at 277,
144 A.3d at 627;
Wilson,
385 Md. at 199,
867 A.2d at 1084.
Second, the circuit court did not abuse its discretion in denying the request for a
curative instruction. In resolving Petitioner’s motion, the circuit court relied on Patterson
and Cost. We first examine the circuit court’s reliance on these cases without deference.
31
See Anderson, 424 Md. at 243,
35 A.3d at 459 (“We review the trial and intermediate
appellate courts’ legal conclusions . . . nondeferentially.”). In denying Petitioner’s request,
the circuit court stated
I am looking right now at Patterson . . . [and] it says that when a party fails
to produce evidence, an inference may be made against that party. But many
inferences, however, may be drawn from the missing piece of evidence and
emphasis on one possible inference out of all of the rest by a trial judge
specifically, and I take that to mean in the form of a curative instruction, can
be devastatingly influential upon a jury, although unintentionally so. And
therefore, it goes on to say that it is within the judge’s discretion in those
circumstances.
(Emphasis added). Applying the discretion interpreted from Patterson, the circuit court
distinguished the present case with Cost, reasoning that
in [Cost] there were allegedly, you know, bloody linens and items that were
not recovered, not produced and the judge in that instance, they indicated,
should have given a missing instruction that these are things that normally
would have been recovered and tested and that an inference against the State
could have been made in that case. And I distinguish that from this instance
for reason that I said, which is that this alleged missing piece of evidence in
fact would have been favorable to the State based on the evidence that we
have.
We find no legal error or abuse of discretion. In Patterson, the police searched a
jacket and discovered a controlled substance. 356 Md. at 681,
741 A.2d at 1121. Police
did not collect the jacket, instead photographing it and introducing the photo at trial.
Id. at
681–82,
741 A.2d at 1121. The defendant wished to use the jacket to demonstrate that it
did not fit him, and when it was unable to be produced, he asked the circuit court to instruct
the jury that they could infer from the absence that the jacket “would have been unfavorable
to the State.”
Id. at 682,
741 A.2d at 1121. Patterson held that
32
[w]hen evidence is missing, apparently due to the act or omission of one of
the parties, an inference that the evidence would have been unfavorable to
that party may be appropriate. . . . We now further refine the issue in the case
sub judice by holding that, regardless of the evidence, a missing evidence
instruction generally need not be given; the failure to give such an instruction
is neither error nor an abuse of discretion.
Id. at 688, 741 A.2d at 1124–25 (emphasis added). Patterson further noted that the circuit
court “provide[d] another [general] instruction and allow[ed] defense counsel to call the
jury’s attention to the inference.”
Id. at 689,
741 A.2d at 1125.
Patterson was distinguished by Cost, which held “the unusual facts here stand in
stark contrast to those in Patterson.” Cost, 417 Md. at 380,
10 A.3d at 196. The unique
record in Cost evidenced that the State had failed to properly collect evidence, promptly
submit collected evidence for testing, and maintain an appropriate chain of custody.
Id.,
10 A.3d at 196. Ultimately the State destroyed the evidence.
Id.,
10 A.3d at 196. We held
that
[s]uch evidence might well have created reasonable doubt as to [the
defendant’s] guilt. This missing evidence could not be considered
cumulative, or tangential—it goes to the heart of the case. We are persuaded
that under these circumstances a ‘missing evidence’ instruction, which would
permit but not demand that the jury draw an inference that the missing
evidence would be unfavorable to the State, should have been given.
Id. at 380–81,
10 A.3d at 196.
We agree with the circuit court’s application of Patterson and Cost. The
strangulation form completed by Cpl. DeAngelis is tantamount to missing evidence, since
“due to the act or omission of one of the parties,” a form purported to have been completed
at the scene was not submitted to the State or Petitioner. Patterson, 356 Md. at 688,
741
A.2d at 1124. The case at bar does not share similarly “unique” factors which warranted
33
our holding in Cost. The strangulation form Cpl. DeAngelis testified to having completed
was amongst evidence including photos of Ms. G. from the scene, Ms. G.’s testimony, an
eyewitness’s testimony, and, notably, the testimony of Cpl. DeAngelis on the undisclosed
strangulation form elicited by Petitioner. Instead, the case at bar resembles Patterson as
the circuit court allowed Petitioner to explore the implications of the undisclosed form on
the witnesses’ credibility and provided, as discussed below, a similar general instruction.
Accordingly, we hold the circuit court was correct in applying those cases and
distinguishing the present matter from Cost.
Since there was no error with the legal application, we turn to whether the circuit
court abused its discretion in denying to give the curative instruction. “[J]udges are
accorded broad discretion in determining whether a particular instruction should be given
on a particular occasion, . . . a defendant does not have an absolute right to a curative
instruction regarding the inappropriate admission of prejudicial evidence.” Carter, 366
Md. at 584, 587,
785 A.2d at 353, 355 (citation omitted). Additionally, Maryland Rule 4-
325(c) requires “the giving of a requested instruction when[:] . . . (1) the instruction is a
correct statement of law; (2) the instruction is applicable to the facts of the case; and (3)
the content of the instruction was not fairly covered elsewhere in instructions actually
given.” Dickey v. State,
404 Md. 187, 197–98,
946 A.2d 444, 450 (2008).
To ascertain whether the circuit court abused its discretion, we must initially
consider what Petitioner requested. The record demonstrates that immediately upon
learning of the undisclosed strangulation form, Petitioner requested “an instruction to say
[that the jury] can only consider what has been entered into evidence.” In again raising his
34
request the following day, Petitioner stated “[i]f the mistrial motion has been denied, we
would be requesting a curative instruction.” Although Petitioner’s express request was for
an instruction that the jury was limited to considering only the evidence before it, it appears
that what he may actually have been seeking was an instruction to disregard Cpl.
DeAngelis’s testimony regarding the undisclosed strangulation form. In either case, we
see no abuse of discretion by the circuit court in denying the motion.
The requested instruction matched in content to the instructions given by the circuit
court at the close of the trial:
In making your decision, you must consider the evidence in this case, that is
testimony from the witness stand and physical evidence or exhibits admitted
into evidence.
…
The following things are not evidence and you should not give them any
weight or consideration: Any testimony that I struck or told you to disregard
and any exhibits that I struck or did not admit into evidence, questions that
the witnesses were not permitted to answer and objections of the lawyers,
and the charging document.
Thus, despite the denial of Petitioner’s request, the jury was ultimately instructed to review
only what had been entered into evidence. Accordingly, denial of Petitioner’s request for
an instruction to “only consider what has been entered into evidence” was not an abuse of
discretion. Cf. Dickey, 404 Md. at 197–98, 946 A.2d at 450 (requiring “the giving of a
requested instruction when[:] . . . (3) the content of the instruction was not fairly covered
elsewhere in instructions actually given.”) (emphasis added).
Assuming, arguendo, that what Petitioner really wanted was for the court to strike
the testimony of Cpl. DeAngelis, we do not see an abuse of discretion by the refusal of the
35
circuit court to do so. As an initial matter, Petitioner never expressly made that request.
As discussed above, Petitioner chose to elicit testimony on the undisclosed form before the
jury after he questioned Cpl. DeAngelis outside of the presence of the jury. For this Court
to conclude there has been an abuse of discretion, “the [circuit] court’s decision must be
well removed from any center mark imagined by the reviewing court and beyond the fringe
of what that court deems minimally acceptable.” Devincentz, 460 Md. at 550,
191 A.3d at
391 (internal quotation omitted). We do not believe that the circuit court was well removed
from any center mark, given Petitioner’s choice to knowingly elicit the testimony he later
sought to strike.
In conclusion, we reiterate that a defendant is entitled to a fair trial, not a perfect
trial. Payton, 461 Md. at 559,
195 A.3d at 1260 (“Criminal defendants have the right to a
fair, yet not a perfect, trial.”). Here, the circuit court did not abuse the considerable
discretion we afford circuit courts. The circuit court concluded that Petitioner was not
prejudiced by the discovery of the undisclosed strangulation form because the form
provided in discovery was helpful to him and because the two testifying officers gave
conflicting testimony about the form. Petitioner still chose to proceed with cross-
examination on the missing form with Cpl. DeAngelis. Accordingly, we hold that the
circuit court did not abuse its discretion by refusing to grant Petitioner’s requests and
answer Petitioner’s third question in the negative.10
10
We note that the State raised in its briefing and argument a claim that Petitioner
waived any argument regarding a mistrial or curative instruction. Maryland Rule 8-
131(b)(1) provides in relevant part, “the Supreme Court ordinarily will consider only
an issue that has been raised in the petition for certiorari or any cross-petition and that
36
Conclusion
The circuit court did not abuse its discretion in denying Petitioner’s requests for a
mistrial or curative instruction under the circumstances presented in this case. We
therefore affirm the judgment of the Appellate Court.
JUDGMENT OF THE APPELLATE
COURT IS AFFIRMED. COSTS TO
BE PAID BY PETITIONER.
(continued . . .)
(. . . continued)
has been preserved for review by the Supreme Court.” Having reviewed the record, we
conclude that Petitioner did not waive the claims raised in this appeal. Additionally, given
our disposition on the merits of the case at bar we need not reach harmless error.
37
Appendix A
38
