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Maryland high court limits prosecution’s disclosure requirements

Judges draw distinction between state's attorneys' offices, jails

“A correctional facility, like other state agencies including mental health facilities or juvenile detention facilities, do not operate for the purpose of investigating or prosecuting cases,” Judge Michele D. Hotten wrote for the court’s majority. “Nor does a correctional facility, unlike a prosecutor or a police officer, report to the state’s attorney.” (The Daily Record/File Photo)

Prosecutors need not disclose to defense attorneys the possibility that their accused clients’ jailhouse telephone conversations were recorded, a divided Maryland high court ruled Tuesday.

The Court of Appeals said Maryland’s detention facilities operate independently of the state’s attorneys’ offices and are not involved in criminal investigations. Thus, recordings of telephone conversations to and from the jail are not “in the possession or control the prosecutor” and therefore not subject to the prosecution’s obligation to disclose under the state’s procedural Rule 4-263, the high court said.

“A correctional facility, like other state agencies including mental health facilities or juvenile detention facilities, do not operate for the purpose of investigating or prosecuting cases,” Judge Michele D. Hotten wrote for the court’s majority. “Nor does a correctional facility, unlike a prosecutor or a police officer, report to the state’s attorney.”

The high court issued its decision in upholding the illegal gun possession conviction of Eric Antonio Alarcon-Ozoria, whose recorded jailhouse phone conversations were not sought by the Montgomery County State’s Attorney’s Office until just days before trial and were disclosed to the defense on the morning of the proceeding.

The Court of Appeals rejected Alarcon-Ozoria’s argument through counsel that the recordings should have been excluded from trial because the jail is essentially an arm of the state, thus placing the prosecutors in constructive possession of the recordings much earlier and establishing the prosecution’s duty to disclose their potential existence at that point.

Counsel also argued in vain that the prosecution would have discovered the recordings earlier by simply asking jail officials, while the defense would have needed a court order in the absence of the required disclosure.

“We are not persuaded by the claim of petitioner (Alarcon-Ozoria) that requesting the records via email, as opposed to subpoena pursuant to Maryland (rules), demonstrates preferential treatment, thereby establishing a reporting relationship between the correctional facility and the state’s attorney,” Hotten wrote.

“If information sharing between state entities without a subpoena established a reporting relationship, then there would be no limit to the state’s attorney’s reporting obligations,” Hotten added. “Petitioner’s interpretation would significantly expand the scope of the rule … that mandatory disclosure only extends to the state’s attorney’s office, its support staff, and agents who regularly participate in the investigation or prosecution of a case, or who have participated in the specific case.”

Hotten was joined in the opinion by Chief Judge Joseph M. Getty and Judges Robert N. McDonald, Brynja M. Booth and Jonathan Biran.

In dissent, Judge Shirley M. Watts said the prosecution’s obligation to disclose to the defense expressly includes a due diligence obligation to discover “all written and oral statements of the defendant … that relate to the crime charged,” which would include jailhouse communications.

“The majority’s interpretation of Rule 4-263 would allow the state’s attorney to obtain a strategic and indeed unfair advantage by delaying (including inadvertently) in having information that is required to be disclosed under the rule come into its possession and control,” Watts wrote.

“First, under the majority’s reading, a state’s attorney who knows of jail calls constituting statements of the defendant would not be in violation of Rule 4-263(c)(1) by waiting, as the state’s attorney did here, until shortly before trial to request the calls and disclosing to the defense the existence of the calls on the first day of trial,” Watts added. “Next, would the state’s attorney also be permitted to delay until the day before trial interviewing a witness known to possess exculpatory information and disclosing the first day of trial exculpatory information gained from the witness because the information did not allegedly fall within the scope of the state’s attorney’s due diligence obligation until the time of the interview?”

The prosecution requested Alarcon-Ozoria’s recorded telephone conversations on July 31, 2019, in advance of his trial scheduled for five days later. The prosecution received the approximately 200 recordings on Aug. 2, 2019, and disclosed them to the defense on Aug. 5, 2019.

In light of the late disclosure, the presiding Montgomery County Circuit Court judge barred the prosecution from playing any recordings until the second day of trial to enable the defense to review them.

In one of the recordings, Alarcon-Ozoria responded affirmatively when the person on the call made reference to Alarcon-Ozoria’s firing of the weapon in a Silver Spring alley.

The recording, which the prosecution introduced to show Alarcon-Ozoria’s consciousness of guilt, was accompanied at trial by a surveillance video and eyewitness testimony of the shooting.

The jury found Alarcon-Ozoria guilty of illegal gun possession. He was sentenced to 15 years in prison, with all but 12 years suspended and five years’ supervised probation.

The intermediate Court of Special Appeals upheld the conviction, prompting Alarcon-Ozoria to seek review by the high court.

In ruling for the state, the high court said any error in admitting the calls at trial would have been harmless anyway in light of the damning video and eyewitness testimony.

Judge Sally D. Adkins, in a concurring opinion, said she agreed with Watts that the prosecution “waited too long” before requesting the recordings but added that any error in admitting the calls at trial was harmless in light of the video and eyewitness testimony.

Adkins, a retired judge, was sitting by special assignment.

Neither Elizabeth Ertle, Alarcon-Ozoria’s appellate lawyer, nor the Maryland attorney general’s office immediately returned messages Thursday seeking comment on the high court’s ruling. Ertle is with Covington & Burling LLP in Washington.

The Court of Appeals rendered its decision in Eric Alarcon-Ozoria v. State of Maryland, No. 4, September Term 2021.