Alarcon-Ozoria v. State

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ERIC ANTONIO ALARCON-OZORIA v. STATE OF MARYLAND

No. 4-2021

Court of Appeals of Maryland

December 21, 2021

Argued: September 14, 2021

Circuit Court for Montgomery County Case No. 135035C.

Getty C.J., McDonald, Watts, Hotten, Booth, Biran, Adkins, Sally D. (Senior Judge, Specially Assigned), JJ.

OPINION

HOTTEN, J.

This appeal arises from a shooting outside a restaurant in Silver Spring, Maryland shortly after 1:00 a.m. on June 9, 2018. Witnesses and security camera footage identified two suspects involved in the shooting. Following an anonymous tip, law enforcement identified one of the men as Ruben Gilbert. Law enforcement obtained a search warrant for Mr. Gilbert's cell phone and gathered evidence implicating Eric Alarcon-Ozoria ("Petitioner") as the other person involved in the shooting.

Petitioner was charged with assault in the first-degree, use of a firearm in the commission of a crime of violence, and illegal possession of a firearm after a felony conviction. Mr. Gilbert was charged as a co-conspirator, but the State entered a nolle prosequi disposition in June 2019. Petitioner's jury trial was scheduled for Monday, August 5 through Thursday, August 8, 2019 in the Circuit Court for Montgomery County.

On the morning of August 5 before trial, the State shared with defense counsel for the first time approximately 200 jail call recordings of conversations between Petitioner and Mr. Gilbert. The State had requested recordings of calls made by Petitioner from a state correctional facility on Wednesday, July 31, and received the calls on Friday, August 2. The State reviewed the recordings over the weekend, and on Sunday, August 4, requested additional recordings of any outgoing calls from the jail to Mr. Gilbert's phone. At 6:00 a.m. on Monday, August 5, the correctional facility provided one additional recording of a jail call between Mr. Gilbert and a person originally identified as another inmate but later identified as Petitioner. During an on-the-record chambers conference, the State identified twelve recordings received on Friday, August 2 that it might use for impeachment purposes and the one recording received Monday, August 5 that it said it planned to use in its case-in-chief.

Over objection of defense counsel, the circuit court admitted the jail call recordings with the State's assurance that it would not use the recordings in its case-in-chief or as impeachment evidence until the second day of trial, to give defense counsel time to review the recordings.

The jury convicted Petitioner of illegal possession of a firearm. The circuit court sentenced Petitioner to fifteen years' imprisonment, with all but twelve years suspended and upon release five years of supervised probation. Petitioner timely appealed to the Court of Special Appeals, which affirmed.

We granted certiorari on April 9, 2021 to address the following questions:

1. Does the State's obligation to exercise due diligence in identifying and disclosing relevant materials in criminal litigation extend to phone call recordings collected and preserved by the State's jail facilities?

2. In a criminal case, does a recording of a defendant's own statement that is not disclosed until the morning of trial constitute an unfair surprise to the defense, such that it requires relief?

We answer both questions in the negative and shall affirm the judgment of the Court of Special Appeals.

Facts and Procedural Background

The Underlying Incident

On June 9, 2018, a shooting occurred outside Abyssinia, an Ethiopian restaurant in downtown Silver Spring, Maryland. The shots occurred in a nearby and "heavily populated[]" alleyway by the outdoor side patio bar. No one was injured. The restaurant had an outdoor surveillance camera facing the alleyway, but the view of the shooting was blocked by restaurant awnings.

Amir Abdella, the manager of Abyssinia, heard the first gunshot and turned to see a person running away, followed by the shooter, later identified as Petitioner, holding a gun pointed towards the victim running away. A second man, who was later identified as Mr. Gilbert, walked behind the shooter. Mr. Abdella testified that he was only five to six feet away when he watched the shooter fire a second shot at the person running away. He heard a third shot, but did not see it.

Mr. Abdella testified that he saw the shooter and the second man earlier sitting together in the restaurant. He recognized these men because they sat with a group of women not eating or drinking and "saw the discomfort of the [women.]" He eventually called security to ask them to leave. Mr. Abdella provided to law enforcement security footage depicting the two men sitting together at a table and identified one of the men as Petitioner. Mr. Abdella described the shooter at trial, but admitted that he might not be able to identify the shooter again if he saw him.^[1] At least one other witness, Christopher Parkes, a security guard at the adjacent Kaldi's Social House restaurant, heard multiple gun shots and saw muzzle flashes followed by people scattering in the alleyway. A firearms expert corroborated the testimony of Mr. Parkes and opined that the two collected shell casings came from the same weapon.

The State also produced another nearby restaurant surveillance video that depicted the two suspects: a taller man and a shorter man holding a gun. On July 30, law enforcement issued a press release seeking the public's help in identifying the two men involved in the shooting. An anonymous tip identified the taller man as Mr. Gilbert. Law enforcement compared the Motor Vehicle Administration photo of Mr. Gilbert with the surveillance footage and determined they were the same person. Law enforcement obtained a search warrant of Mr. Gilbert's phone and found the following text conversation between Mr. Gilbert and Petitioner:

[Petitioner:] Is dere a camera At dat lil side bar[?]

[Petitioner:] And Erin just asked me bout you[.]

[Mr. Gilbert:] Tell her hit me[.]

[Mr. Gilbert:] N id[]k we Gucci doe babe[.]

This text exchange occurred approximately one hour after the shooting. According to the detective assigned to the case, the "[s]idebar" referred to Abyssinia's outdoor side patio bar in the alleyway-"the only [s]idebar in this entire area." The detective also explained that the phrase "we Gucci" is slang for "we're good."

Law enforcement executed an arrest warrant for Petitioner and Mr. Gilbert. Officers seized clothes in the home of Petitioner consistent with those worn by the shooter in the surveillance video. The Grand Jury for Montgomery County indicted Petitioner on charges of assault in the first-degree, use of a firearm in the commission of a crime of violence, and illegal possession of a firearm after a felony conviction. A jury trial was scheduled for August 5 through August 8, 2019 in the circuit court. Mr. Gilbert was charged as a co-conspirator, but a nolle prosequi disposition was entered for Mr. Gilbert in June 2019.

Legal Proceedings

A. Discovery

On January 23, 2019, defense counsel filed a discovery request, "in accordance with Maryland Rule 4-263:^[2] . . . [for all] material and information in the possession or control of the State's Attorney . . . and any others who have participated in the investigation or evaluation of the case and who either regularly report or, with reference to the particular case, have reported to the State's Attorney of his/her office." (Emphasis added). The purpose of the request was to "obtain disclosure of material and information to the fullest extent authorized and directed by Maryland Rule 4-263[.]" (Emphasis added). On May 15, 2019, defense counsel requested additional discovery pursuant to the State's obligations under the Maryland Rules and State v. Williams, 392 Md. 194, 896 A.2d 973 (2006), for any "recordings . . . or other materials concerning any . . . statements made by" Mr. Gilbert or Petitioner.

The State assured defense counsel that it would "open its evidentiary file" so defense counsel could see the State did not possess any "written statements by any witnesses otherwise not provided." The State also assured the circuit court about its good faith compliance with discovery obligations: "I think it's important that the Court know that we have met with counsel. . . . Open file discovery is the policy of my office, and open file discovery has been the practice in this case. We have met no less than two times . . . where we've gone through the file to make sure everything in counsel's file reflects everything in the State's file[.]" The circuit court acknowledged the two parties' cooperation during a status hearing on July 25, 2019: "I appreciate counsel working together as you obviously are doing to try to work out as many of these issues as you can."

On July 26, the State disclosed additional evidence that it intended to introduce. The evidence was an activity log, gathered from Mr. Gilbert's cellular phone, that purportedly counted Mr. Gilbert's steps during different time frames on the night of the shooting. Defense counsel moved to exclude the evidence as untimely and non-compliant with Md. Rule 4-263(c). On July 31, the circuit court agreed with defense counsel that the evidence should be excluded, but not because of a bad faith or unduly late disclosure on behalf of the State. The circuit court found the disclosure unfair to the defense under the circumstances "given that the parties had reached an agreement on . . . the scope of the information that would be used from the cell phone [seized from Mr. Gilbert]." The activity log exceeded the scope of the parties' stipulation and was excluded.

On July 31, in preparation for trial, the State requested from Mr Amando Gomes, an employee...