Alarcon-Ozoria v. State , 477 Md. 75 ( 2021 )


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  • Eric Antonio Alarcon-Ozoria v. State of Maryland, No. 4, September Term 2021. Opinion
    by Hotten, J.
    CRIMINAL LAW – DISCOVERY – MANDATORY DISCLOSURE
    The Court of Appeals held that the scope of the mandatory obligation of the State to
    disclose materials to the defense without request does not extend to materials held by a
    state correctional facility, which is not within the ambit of control by the State, does not
    regularly report to the State’s Attorney, and did not report to the State’s Attorney in the
    instant case. Maryland Rule 4-263(c)(2) obligates the State to disclose materials that “are
    in the possession or control of the [State’s] attorney, members of the [State’s] attorney’s
    staff, or any other person who either reports regularly to the [State’s] attorney’s office or
    has reported to the [State’s] attorney’s office in regard to the particular case.” In the instant
    case, the State requested and received recordings from a state correctional facility of inmate
    phone conversations made by Petitioner. The state correctional facility is a distinct entity
    from the State’s Attorney and did not participate in the investigation or prosecution of the
    defendant. Therefore, the scope of mandatory disclosure of discoverable materials did not
    extend to the correctional facility.
    CRIMINAL LAW – DISCOVERY – DUE DILIGENCE
    The Court of Appeals held that the State did not violate its obligation of due diligence by
    providing jail call recordings of statements made by Petitioner on the morning of trial.
    Maryland Rule 4-263(c)(1) obligates the State to exercise due diligence in identifying “all
    of the material and information that must be disclosed under this Rule.” (Emphasis added).
    The obligation for due diligence was not triggered until the State received approximately
    200 jail call recordings three days before trial. The State did not violate its due diligence
    obligations by reviewing the recordings over the weekend and providing Petitioner with a
    select group of twelve recordings that it may have used as impeachment evidence and one
    recording used in its case-in-chief.
    CRIMINAL LAW – DISCOVERY – HARMLESS ERROR
    Assuming arguendo that the State violated its discovery obligations by providing jail call
    recordings to Petitioner on the morning of trial, the Court of Appeals held that the error
    was harmless beyond a reasonable doubt. The Court held in Thanos v. State, 
    330 Md. 77
    ,
    
    622 A.2d 727
     (1993), that assuming the State violated Md. Rule 4-263 by surprising the
    defendant with three witnesses before trial, “any error in the State’s discovery violations
    was harmless” given the existence of corroborating evidence. 
    Id. at 97
    , 
    622 A.2d at 736
    .
    Similar to the corroborating evidence in Thanos, the State provided additional evidence to
    establish consciousness of guilt independent of the jail call recordings, including a text
    message exchange, witness testimony, forensic evidence, a 911 call recording, pictures,
    and video footage of the incident. Therefore, the Court concluded any error was harmless.
    Circuit Court for Montgomery County
    Case No. 135035C
    Argued: September 14, 2021                                                             IN THE COURT OF APPEALS
    OF MARYLAND
    No. 4
    September Term, 2021
    __________________________________
    ERIC ANTONIO ALARCON-OZORIA
    v.
    STATE OF MARYLAND
    __________________________________
    Getty, C.J.,
    McDonald,
    Watts,
    Hotten,
    Booth,
    Biran,
    Adkins, Sally D. (Senior Judge,
    Specially Assigned),
    JJ.
    __________________________________
    Opinion by Hotten, J.
    Watts, J., dissents.
    Adkins, J., concurs.
    __________________________________
    Filed: December 21, 2021
    Pursuant to Maryland Uniform Electronic Legal
    Materials Act
    (§§ 10-1601 et seq. of the State Government Article) this document is authentic.
    2021-12-21
    10:28-05:00
    Suzanne C. Johnson, Clerk
    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
    2
    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
    1
    The description of the shooter provided by Mr. Abdella at trial contradicted, in
    part, his description of the shooter made during the initial 911 call. During trial, he testified
    that the shooter was 5’8” wearing a white shirt and black pants, but during the 911 call, he
    described the shooter as about 5’1” or 5’2” and wearing a white shirt with a black logo,
    black pants, and black sneakers.
    3
    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
    4
    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
    2
    Maryland Rule 4-263(c) provides:
    (c) Obligations of the Parties.
    (1) Due Diligence. The State’s Attorney and defense shall exercise due
    diligence to identify all of the material and information that must be
    disclosed under this Rule.
    (2) Scope of Obligations. The obligations of the State’s Attorney and the
    defense extend to material and information that must be disclosed under
    this Rule and that are in the possession or control of the attorney,
    members of the attorney’s staff, or any other person who either reports
    regularly to the attorney’s office or has reported to the attorney’s office
    in regard to the particular case.
    Cross reference: For the obligations of the State’s Attorney, see State v.
    Williams, 
    392 Md. 194
    [, 
    896 A.2d 973
    ] (2006).
    5
    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
    6
    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 at the Montgomery County Correctional Facility, any recordings of jail calls
    made by Petitioner as an inmate at the correctional facility. Counsel for the correctional
    facility delivered 201 jail call recordings to the State’s Attorney on Friday, August 2. The
    assigned prosecutor took them home over the weekend and began reviewing the calls on
    Saturday, August 3.
    The recordings contain calls made by Petitioner from December 19, 2018 to August
    1, 2019. Petitioner first made a call to Mr. Gilbert on April 15, 2019 and subsequently
    called Mr. Gilbert “no less than 12 times.” The last call Petitioner made to Mr. Gilbert
    occurred on July 16, 2019. Each call lasted approximately twenty minutes.
    The State characterized most of the conversations as “sundry discussi[on]” and
    devoid of a “smoking gun in terms of [‘]I did this.[’]” A few of the conversations discussed
    the case and referenced the unwillingness of Mr. Gilbert to provide testimony. The “State
    was concerned at the potential of suborning perjury and obstruction of justice. . . .” The
    State concluded that it would not use these calls in its case-in-chief, but could use some of
    them for impeachment if Mr. Gilbert testified.
    The State emailed Mr. Gomes on Sunday, August 4, requesting a backwards search
    of Mr. Gilbert’s phone number to identify any jail calls made to his phone. Mr. Gomes
    replied via email at 6:00 a.m. on Monday, August 5 with one jail call made to Mr. Gilbert
    on April 2 (“the April 2 call”) from the account of another detainee with the last name
    7
    Pinto.3 In the April 2 call, Mr. Gilbert answered the phone and asked if the person calling
    was named “Sosa”—a nickname used by Petitioner. Petitioner answered in the affirmative
    and they proceeded to discuss the case over the course of a fifteen-minute conversation.
    The State shared the call recordings with defense counsel at the courthouse on the
    morning of August 5. During an on-the-record chambers conference, the State identified
    twelve calls between Petitioner and Mr. Gilbert that could be used to impeach Mr. Gilbert
    during his testimony. The State also proffered the April 2 call between Mr. Gilbert and
    Petitioner to use in its case-in-chief. While the call was made through another inmate’s
    PIN number, the State explained that the call was between Petitioner and Mr. Gilbert.
    Defense counsel objected to the proposed evidence as untimely and requested a one-
    day continuance. The State argued that Petitioner waived any right to challenge the call
    because he attempted to conceal it using another inmate’s PIN number. The State offered
    to withhold reference to the recordings in its opening statement and not to call Mr. Gilbert
    until the second day of trial because “the State certainly d[i]dn’t want to catch [defense
    counsel] by surprise.” The State also asked the circuit court and defense counsel to
    “understand the predicament the State is bound in when [it’s] listening to calls of
    obstruction of justice within this trial. And then [it] learn[s] of a call that was made by the
    defendant that was hidden and was [not] meant to be [] found which [the State] found.”
    3
    Each inmate at Montgomery County Correctional Facility receives an individual
    personal identification number (“PIN”) to make outgoing calls.
    8
    The circuit court did not rule on whether the State violated its discovery obligations,
    but denied the request for continuance. The circuit court articulated its belief that defense
    counsel would have an opportunity to review the April 2 call by the second day of trial.
    B.       The Trial
    The State neither mentioned the April 2 call during its opening statement, nor called
    Mr. Gilbert as a witness on the first day of trial. In addition to Mr. Gilbert’s testimony, the
    State called thirteen witnesses, consisting of civilians, members of law enforcement, and
    forensic experts. The State also presented fifty-eight exhibits, including three surveillance
    videos from nearby establishments. When the State called Mr. Gilbert, on the second day
    of trial, he testified that he was friends with Petitioner, and they were together at Abyssinia
    on the night of the shooting. He testified that the surveillance video depicted him and
    Petitioner, but that he did not see Petitioner with a gun, nor did he see Petitioner fire any
    shots.
    Over a renewed objection from Petitioner, the State introduced the jail call
    recording:4
    Mr. Gilbert: Who is this, is this Sosa?
    [Petitioner]: Yeah, yeah.
    ***
    [Petitioner]: I said I’m trying to figure something out []. . . .
    Mr. Gilbert: Uh-huh. It’s still looking like nothing going, man. . . . So, I
    ain’t worried about this, get you back on the brick, bro.
    [Petitioner]: Yeah, yeah. []. . . .
    ***
    Mr. Gilbert: []. Sorry, I’m trying to get you situated. . . . I feel like you were
    with that bitch. And that bitch was fucking with (unintelligible). . . . It was
    her or somebody close to us.
    4
    This excerpt of the recording omits numerous lines of unintelligible dialogue.
    9
    ***
    Mr. Gilbert: I ain’t done nothing.
    [Petitioner]: Shut up.
    Mr. Gilbert: Hey, I don’t. That’s how it is bro. That’s how I’m going to be,
    you feeling me? . . . There wasn’t no problem when you did that.
    [Petitioner]: Yeah.
    Mr. Gilbert confirmed that the call was between him and Petitioner, even though the call
    was made using the PIN number of another inmate.
    At the close of evidence, the circuit court granted judgment of acquittal as to first-
    degree assault and use of firearm in a crime of violence. 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.
    C.     The Court of Special Appeals
    The Court of Special Appeals affirmed the circuit court in an unreported opinion.
    Alarcon-Ozoria v. State, No. 2149, Sept. Term, 2019, 
    2020 WL 7706980
     (Md. Ct. Spec.
    App. Dec. 29, 2020). The Court reached the merits of the discovery violation, even though
    the circuit court did not find a discovery violation, and Petitioner failed to insist upon a
    ruling “as he is required to do[.]” Id. at *5. In the absence of a “specific finding as a matter
    of law that the State violated the discovery rule,” the Court “exercise[d] independent de
    novo review to determine whether a discovery violation occurred[.]” Id. (quoting Williams
    v. State, 
    364 Md. 160
    , 169, 
    771 A.2d 1082
    , 1087 (2001)).
    The Court concluded that the State did not violate its discovery obligations. Id. at
    *6. According to the Court, the disclosure of the jail call recordings did not violate Md.
    10
    Rule 4-263 because the State did not have an underlying obligation to seek or obtain the
    jail call recordings. Id. The Court explained, “the State was not under a duty to disclose
    materials that it did not have.” Id. The Court rejected the argument that the State had an
    obligation to seek the records at any point prior to trial. Id.
    The Court also found that the State exercised due diligence. According to the Court,
    “[i]t is significant that [Petitioner] attempted to conceal the call by using another inmate’s
    phone number to make the call, and we agree that [Petitioner] cannot claim unfair surprise”
    when Petitioner was “an active concealer.” Id.
    Finally, the Court found that the State was sufficiently prompt in providing the
    recordings to Petitioner. The State shared the recordings after having an opportunity to
    review the materials over the weekend. The circuit court did not abuse its discretion,
    according to the Court, by declining to continue the case for a day. Id. The circuit court
    fashioned an appropriate remedy by allowing the State to refrain from mentioning the
    recording in its opening statement and to delay calling Mr. Gilbert so Petitioner could
    review the recording. Id.
    Petitioner timely filed a petition for certiorari, which this Court granted on April 9,
    2021. Alarcon-Ozoria v. State, 
    474 Md. 220
    , 
    253 A.3d 1076
     (2021).
    DISCUSSION
    Standard of Review
    The circuit court is vested with broad discretion in administering discovery.
    Williams v. State, 
    416 Md. 670
    , 698, 
    7 A.3d 1038
    , 1054 (2010). Therefore, this Court
    “reviews for abuse of discretion a [circuit] court’s decision to impose, or not impose a
    11
    sanction for a discovery violation.” Dackman v. Robinson, 
    464 Md. 189
    , 231, 
    211 A.3d 307
    , 332 (2019) (citing Beka Indus., Inc. v. Worcester Cty. Bd. of Educ., 
    419 Md. 194
    , 232,
    
    18 A.3d 890
    , 913 (2011)).
    If the circuit court “made no specific finding as a matter of law that the State violated
    the discovery rule, we exercise independent de novo review to determine whether a
    discovery violation occurred.” Williams, 
    364 Md. at 169
    , 
    771 A.2d at 1087
    .
    We review any discovery violation for harmless error. Johnson v. State, 
    360 Md. 250
    , 269, 
    757 A.2d 796
    , 806 (2000); Green v. State, 
    456 Md. 97
    , 165, 
    171 A.3d 1162
    , 1201
    (2017) (“Having established that the State violated [Md.] Rule 4-263[] . . . we must next
    inquire as to whether the error was harmless.”). “If the trial judge erred because the State
    did in fact violate the discovery rule, we consider the prejudice to the defendant in
    evaluating whether such error was harmless.” Williams, 
    364 Md. at 169
    , 
    771 A.2d at 1087
    (citation omitted).
    The Contentions of the Parties
    Petitioner contends that the State violated its discovery obligations by producing jail
    call recordings on the morning of the trial. According to Petitioner, the State had a
    mandatory and automatic obligation to disclose the jail call recordings without delay or
    request pursuant to Md. Rule 4-263. This obligation extended to material in the possession
    or control of the correctional facility because, according to Petitioner, the State exercised
    a supervisory relationship over the facility.
    Petitioner argues that the supervisory relationship can be demonstrated by the
    State’s direct and informal access to materials held by the correctional facility. The State
    12
    received the recordings within 48 hours of an email request, and the recordings were “hand-
    delivered” to the State’s Attorney’s Office. According to Petitioner, private counsel would
    need to wait at least nine days pursuant to Md. Rule 4-265(d)5 before a subpoena request
    for jail call recordings would be enforceable.
    Because the jail call recordings were purportedly under the constructive possession
    and control of the State, Petitioner asserts that the State violated its obligation of due
    diligence pursuant to Md. Rule 4-263(c)(1) by failing to identify and disclose the jail call
    recordings until the morning of trial. Petitioner cites this Court’s definition of due diligence
    from Argyrou v. State, 
    349 Md. 587
    , 604, 
    709 A.2d 1194
    , 1202 (1998), which examined
    due diligence in the context of Md. Rule 4-331(c) (providing the grant of a new trial on the
    basis of newly discovered evidence). Petitioner notes that due diligence requires both good
    faith and timeliness. According to Petitioner, the State’s effort to locate the jail recordings
    on the eve of trial violated the timeliness component of due diligence. The lack of
    knowledge of the recordings, according to Petitioner, did not excuse the State from its
    obligation of due diligence during discovery. Petitioner also argues the State’s assertion,
    5
    Maryland Rule 4-265(d) provides:
    (d) Filing and Service. Unless the court waives the time requirements of
    this section, a request for subpoena shall be filed at least nine days before
    trial in the circuit court, or seven days before trial in the District Court, not
    including the date of trial and intervening Saturdays, Sundays, and holidays.
    At least five days before trial, not including the date of the trial and
    intervening Saturdays, Sundays, or holidays, the clerk shall deliver the
    subpoena for service pursuant to [Md.] Rule 4-266(b). Unless impracticable,
    there must be a good faith effort to cause a trial subpoena to be served at least
    five days before the trial.
    13
    that Petitioner deliberately concealed his conversation with Mr. Gilbert by using the PIN
    number of another inmate is unsupported by the record.
    Finally, Petitioner contends that the late disclosure prejudiced his defense and
    necessitates vacating his conviction. Petitioner notes that the purpose of discovery is to
    assist the defendant in preparing a defense and to prevent unfair surprise. According to
    Petitioner, both of these purposes were violated by the State. Petitioner did not learn about
    the jail call recordings until the morning of the trial, which meant that it had no time to
    adjust its trial strategy that had been in the works for months. Petitioner asserts that the
    State intentionally delayed seeking the calls and in doing so, engaged in “gamesmanship”
    in violation of discovery rules.       The call itself provided evidence of Petitioner’s
    consciousness of guilt, which meant the jury was presented incriminating evidence without
    an adequate opportunity for the defense to respond.
    The State argues that the scope of its discovery obligations did not extend to the
    correctional facility, because the scope of its obligations extends only to materials under
    the possession or control of the State’s Attorney, or someone who reports regularly to the
    State’s Attorney, such as a staff member or law enforcement. A correctional facility staff
    member, according to the State, is not a person who regularly reports to the State’s
    Attorney. The State asserts that its discovery obligations may extend to persons outside of
    its office only if they constitute a prosecutorial arm of the government. 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. Nor does a
    correctional facility, unlike a prosecutor or a police officer, report to the State’s Attorney.
    14
    The State contends no reporting relationship emerged between the correctional
    facility and the State’s Attorney’s Office in the case at bar. The State requested the calls
    from a correctional facility employee, who did not respond until the next day. The
    Assistant State’s Attorney also emailed the employee over the weekend preceding the trial
    and did not receive a response until Monday morning. In both of these instances, according
    to the State, the correctional facility fulfilled requests for information, which does not
    establish a reporting relationship as contemplated by Md. Rule 4-263(c).
    The State also raises practical concerns about Petitioner’s interpretation of the
    State’s discovery obligations. Incarcerated defendants, including Petitioner, may make jail
    calls from the time of arrest until trial. The State argues that it would be impractical to
    require continuous requests for jail calls during this time period. Interpreting the scope of
    Md. Rule 4-263(c) to include a correctional facility, according to the State, would place an
    undue burden on prosecutors because it would extend mandatory disclosures from within
    the State’s Attorney’s Office and its agents to virtually any state agency that may possess
    discoverable information.
    The State also rejects Petitioner’s contention that its late disclosure constituted
    “strategic, last-minute gamesmanship[,]” by drawing a distinction between the State’s
    capacity to acquire the jail call recordings at an earlier date and the State’s obligation to
    acquire the jail call recordings at an earlier date. The State notes that it could have made
    an earlier inquiry, but it was not required to do so.
    Therefore, the State asserts that its obligation to act promptly in disclosing the jail
    calls did not materialize until the State gained possession of the material. The State
    15
    received the calls on Friday, August 3, reviewed them over the weekend to identify which
    calls were relevant, and disclosed the calls on Monday, August 5. The State notes that the
    April 2 call—used in its case-in-chief—was not obtained by the State until Monday,
    August 5. The State alternatively argues that even if it had an obligation to disclose the
    jail recordings sooner, Petitioner’s attempt to conceal the call from detection prevents any
    finding of unfair surprise.
    Assuming arguendo that a discovery violation occurred, the State argues that the
    circuit court imposed an appropriate remedy. The State contends that the circuit court has
    discretion to impose or not impose a sanction for a discovery violation. In this case, the
    circuit court declined the defense’s request for a one-day continuance, but accepted the
    State’s offer to delay mentioning the April 2 call or Mr. Gilbert’s testimony until the second
    day of trial to give defense counsel an opportunity to review the recording. The circuit
    court’s exercise of discretion, according to the State, appropriately remedied any violation
    that may have arisen from the State’s morning-of disclosure.
    Finally, the State argues that even if the circuit court erred by not continuing the
    trial one day for a fifteen-minute phone recording that the State received and disclosed
    within the same day, the error was harmless. Defense counsel reviewed the call but did
    not make any arguments during trial relating to its late disclosure. The State conceded the
    call was not a “smoking gun” because it only contained speculation about who made the
    anonymous tip to police about the identity of Mr. Gilbert. The recording tended to
    demonstrate consciousness of guilt of Petitioner, but according to the State, did not affect
    16
    the verdict given the panoply of other evidence that more clearly demonstrated
    consciousness of guilt.
    Application of Md. Rule 4-263(c)
    A.     The scope of the State’s mandatory disclosure obligations pursuant to Md.
    Rule 4-263(c)(2) does not include jail call recordings held by a state
    correctional facility that has not reported to the State in a particular case.
    Md. Rule 4-263(c) provides:
    (c) Obligations of the Parties.
    (1) Due Diligence. The State’s Attorney and defense shall exercise due
    diligence to identify all of the material and information that must be disclosed
    under this Rule.
    (2) Scope of Obligations. The obligations of the State’s Attorney and the
    defense extend to material and information that must be disclosed under this
    Rule and that are in the possession or control of the attorney, members of the
    attorney’s staff, or any other person who either reports regularly to the
    attorney’s office or has reported to the attorney’s office in regard to the
    particular case.
    Cross reference: For the obligations of the State’s Attorney, see State v.
    Williams, 
    392 Md. 194
    [, 
    896 A.2d 973
    ] (2006).
    “To interpret [discovery rules], we use the same canons and principles of
    construction used to interpret statutes.” Williams, 
    392 Md. at 206
    , 
    896 A.2d at 980
     (quoting
    State ex rel. Lennon v. Strazzella, 
    331 Md. 270
    , 274, 
    627 A.2d 1055
    , 1057 (1993)). We
    begin our analysis by looking at the plain meaning of the rule. Johnson, 
    360 Md. at
    264–
    65, 
    757 A.2d at 804
    .
    “When the words are clear and unambiguous, ordinarily we need not go any
    further. . . . Only when the language of the rule is ambiguous is it necessary that we look
    elsewhere to ascertain legislative intent.” Williams, 
    392 Md. at 207
    , 
    896 A.2d at
    980
    17
    (quoting Strazzella, 
    331 Md. at
    274–75, 
    627 A.2d at 1057
    ) (citations omitted). This Court
    may “search[] for rulemaking intent in other indicia, including the history of the Rule or
    other relevant sources intrinsic and extrinsic to the rulemaking process, in light of: (1) the
    structure of the Rule; (2) how the Rule relates to other laws; (3) the Rule’s general purpose;
    and (4) the relative rationality and legal effect of various competing constructions.” Green,
    456 Md. at 125, 171 A.3d at 1178 (citations, quotations, and other marks omitted).
    “We may also consider other persuasive sources beyond the text of the rule,
    particularly case law interpreting the rule in question.” Williams, 
    364 Md. at
    171 n.13, 
    771 A.2d at
    1088 n.13. Case law interpreting prior versions of the rule is both persuasive and
    instructive. 
    Id.,
     
    771 A.2d at
    1088 n.13.
    This Court in Williams examined the plain text of the substantially similar
    predecessor to Md. Rule 4-263.6 The scope of mandatory discovery obligations for the
    State comprised three groups: (1) the State’s Attorney, (2) his or her staff members, (3) and
    those “who have participated, or are participating, in the case itself, by, for example,
    participating ‘in the investigation or evaluation of the action[,]’ regularly reporting to the
    6
    The previous version of Md. Rule 4-263(c), which was formerly labeled Md. Rule
    4-263(g), stated:
    The obligations of the State’s Attorney under this Rule extend to material
    and information in the possession of the State’s Attorney and staff members
    and any others who have participated in the investigation or evaluation of the
    action and who either regularly report, or with reference to the particular
    action have reported, to the office of the State’s Attorney.
    Williams, 
    364 Md. at
    176–77, 
    771 A.2d at 1091
    .
    18
    State’s Attorney’s Office, or, with respect to the case under review, have reported to the
    State’s Attorney’s Office.” 
    392 Md. at 208
    , 
    896 A.2d at 981
     (emphasis added).
    While the Williams Court did not address whether the scope of the State’s discovery
    obligations extended to other State agencies, this Court held that such mandatory
    disclosures would only apply in limited circumstances, precisely enumerated by the rule.
    
    Id.
     at 209–10, 
    896 A.2d at 982
     (“We hold that by referring only to the ‘State’s Attorney
    and staff members,’ without any restriction, and then including ‘any others,’ restricted to
    those with a direct present or past involvement with the particular action, [the rule] draws
    a distinction between the State’s Attorney’s Office and those outside that Office who are
    on the prosecution team.”) (Emphasis added).
    This Court reached a similar conclusion in Thomas v. State, 
    397 Md. 557
    , 
    919 A.2d 49
     (2007). In Thomas, a defendant told an FBI Agent, following his arrest, that “God has
    forgiven me.” 
    Id. at 564
    , 
    919 A.2d at 53
    . The case proceeded to trial in the Circuit Court
    for Charles County. The prosecutor advised the circuit court that he learned of the “God
    has forgiven me” statement one week before trial and informed defense counsel the same
    day. 
    Id.,
     
    919 A.2d at
    53–54. The defense objected to the untimely disclosure as a violation
    of Md. Rule 4-263, but the circuit court determined that there was no discovery violation.
    
    Id. at 565
    , 
    919 A.2d at 54
    . The defendant was convicted and appealed. 
    Id.
     at 565–66, 
    919 A.2d at 54
    . Noting that FBI agents do not regularly report to the State’s Attorney’s Office,
    the Court of Special Appeals held that the defendant’s statements to the FBI agent did not
    fall within the State’s disclosure obligation until the agent first “reported” that information
    19
    to the State’s Attorney. Thomas v. State, 
    168 Md. App. 682
    , 695, 
    899 A.2d 170
    , 178
    (2006).
    This Court agreed that the scope of discovery obligations generally does not extend
    to agents outside the State’s Attorney’s Office:
    Ordinarily, the obligation to . . . provide discovery [and] impute information
    within the knowledge of a State agent to the State’s Attorney, does not apply
    to federal agents because they do not usually participate in the investigation
    or evaluation of the action and do not either regularly report, or with
    reference to the particular action, actually report to the office of the State’s
    Attorney.
    Thomas, 
    397 Md. at 569
    , 
    919 A.2d at 56
     (emphasis added). However, the FBI agent in
    Thomas may have triggered the discovery obligations of the State because “[h]e
    participated in the investigation as a member of the Washington, D.C. Cold Case Unit, he
    arrested [Thomas], and he wrote a report in the matter.” 
    Id.,
     
    919 A.2d at 56
    .7
    This Court’s prior interpretation of the scope of the State’s discovery obligations
    demonstrates that a jail call recording, held by a correctional facility, does not trigger the
    State’s mandatory disclosure requirements pursuant to Md. Rule 4-263(c) because the
    correctional facility is not part of the State’s Attorney’s Office, nor does it directly or
    regularly report to the State’s Attorney in this case. This Court considered extending the
    scope of Md. Rule 4-263(c) to an FBI agent in Thomas because the record demonstrated
    that the FBI agent was working hand in glove with Maryland law enforcement and the
    State’s Attorney. Unlike the FBI agent in Thomas, who arrested the defendant, solicited
    7
    This Court never determined whether the statement made to an FBI agent triggered
    the mandatory disclosure obligation of the State because it concluded the belated disclosure
    was not prejudicial. 
    Id. at 569
    , 
    919 A.2d at 56
    .
    20
    an incriminating statement during a criminal investigation, and wrote a report, a
    correctional facility generally takes no part in the investigation or prosecution of someone
    who happens to be detained in that facility.
    We reject Petitioner’s contention that the correctional facility reported to the State’s
    Attorney in this particular case by providing the jail call recordings upon request. The
    State requested material held by the correctional facility that was equally available to both
    parties. The correctional facility, like any state agency responding to an information
    request, fulfilled a ministerial function. See Blundon v. Taylor, 
    364 Md. 1
    , 17 n.9, 
    770 A.2d 658
    , 667 n.9 (2001) (“[c]lerical duties are generally classified as ministerial”)
    (citations and quotation omitted).
    We are not persuaded by the claim of Petitioner that requesting the records via
    email, as opposed to subpoena pursuant to Md. Rule 4-265(d), demonstrates preferential
    treatment, thereby establishing a reporting relationship between the correctional facility
    and the State’s Attorney. The plain text of the rule does not define “reports regularly” or
    “has reported[,]” but Petitioner’s interpretation of the rule would lead to untenable results.
    See Frost v. State, 
    336 Md. 125
    , 137, 
    647 A.2d 106
    , 112 (1994) (“[W]e seek to avoid
    constructions that are illogical, unreasonable, or inconsistent with common sense.”). 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 disclosure obligations.
    Petitioner’s interpretation would significantly expand the scope of the rule as articulated
    by this Court in Williams and Thomas, which held that mandatory disclosure only extends
    21
    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.
    We hold that the scope of the State’s discovery obligations did not extend to a jail
    call recording in the possession of a state correctional facility, a facility that was not part
    of the State’s Attorney’s Office, nor did it participate in the investigation or prosecution of
    the instant case.
    B.     The State exercised due diligence in disclosing the jail call recordings under the
    circumstances.
    Maryland Rule 4-263(c)(1) obligates parties to exercise due diligence in identifying
    all information and material that must be disclosed under the rule. This Court has not
    examined the due diligence requirement pursuant to Md. Rule 4-263(c)(1) since its addition
    to the rule in a 2008 amendment. Like Md. Rule 4-263(c)(2), we interpret the plain text of
    Md. Rule 4-263(c)(1) in light of the object and purpose of the rule, and may consult its
    enactment history and case law for interpretive guidance.
    The plain text of Md. Rule 4-263(c)(1) indicates that the obligation for due diligence
    only attaches to material “that must be disclosed under this Rule.” (Emphasis added).
    Material must be disclosed when two conditions are satisfied. First, as discussed above,
    the material must fall within the scope of discovery obligations pursuant to Md. Rule 4-
    263(c)(2), i.e., “in the possession or control of the attorney, members of the attorney’s staff,
    or any other person who either reports regularly to the attorney’s office or has reported to
    the attorney’s office in regard to the particular case.” Md. Rule 4-263(c)(2).
    22
    Second, the material must satisfy one of the several categories of information
    enumerated by Md. Rule 4-263(d).          Maryland Rule 4-263(d)(1) is the category of
    information relevant to the instant case because it pertains to statements of the defendant.
    It requires the State’s Attorney to provide the defense, without a request, “[a]ll written and
    oral statements of the defendant and of any co-defendant that relate to the offense charged
    and all material and information, including documents and recordings, that relate to the
    acquisition of such statements[.]” Md. Rule 4-263(d)(1) (emphasis added). We assume
    without deciding that at least some of the jail call recordings between Petitioner and Mr.
    Gilbert satisfied Md. Rule 4-263(d)(1) because the material contained statements of the
    defendant that referenced the ongoing prosecution.
    The statements did not meet the first condition necessary for mandatory
    disclosure—“in the possession or control” of the State’s Attorney or a person that reports
    regularly to the State’s Attorney or had reported in the particular case—until Friday,
    August 5 when the State received the recordings from the correctional facility. Md. Rule
    4-263(c)(2). Therefore, the obligation to exercise due diligence, according to the plain text
    of the rule, did not attach until it came into the actual or constructive possession or control
    of the State’s Attorney. See Warrick v. State, 
    302 Md. 162
    , 170–71, 
    486 A.2d 189
    , 193
    (1985) (“There are, nevertheless, limitations on the State’s obligations under Md.[ ]R. 741
    a 2 [the predecessor to Md. Rule 4-263]. . . . [The rule] limits that which is discoverable .
    . . to material and information in possession or control of [the State’s Attorney, of]
    members of his [or her] staff and of any others who have participated in the investigation
    or evaluation of the case and who either regularly report or with reference to the particular
    23
    case have reported to his [or her] office.”) (quotation and footnote omitted) (emphasis
    added).
    This plain text interpretation of due diligence is consistent with the object and
    purpose of discovery, the history of Md. Rule 4-263(c)(1), and relevant case law. Berry v.
    Queen, 
    469 Md. 674
    , 688, 
    233 A.3d 42
    , 50 (2020) (“In addition to the plain language, the
    modern tendency of this Court is to continue the analysis of the statute beyond the plain
    meaning . . . in order to ‘check [] our reading of a statute’s plain language[.]’. . .”) (quoting
    In re: S.K., 
    466 Md. 31
    , 50, 
    215 A.3d 300
    , 311 (2019)) (citations omitted).
    The main objective of the discovery rule is to assist the defendant in preparing his
    defense, and to protect him from surprise. Hutchins v. State, 
    339 Md. 466
    , 473, 
    663 A.2d 1281
    , 1285 (1995); Mayson v. State, 
    238 Md. 283
    , 287, 
    208 A.2d 599
    , 602 (1965). The
    rule accomplishes its purpose through its mandatory disclosure provisions. Collins v. State,
    
    373 Md. 130
    , 146–47, 
    816 A.2d 919
    , 928 (2003) (quoting Williams, 
    364 Md. at 172
    , 
    771 A.2d at 1089
    ). There is nothing in the plain text of Md. Rule 4-263(c)(1) that requires due
    diligence in identifying material that falls outside mandatory disclosure provisions. State
    v. Cork, 
    322 Md. 93
    , 103, 
    585 A.2d 833
    , 838 (1991) (noting that the Maryland Rules are
    “precise rubrics” to be strictly followed). The obligation of due diligence helps protect the
    defendant from unfair surprise, but the underlying purpose of Md. Rule 4-263 does not
    warrant extending the obligation of due diligence to materials beyond the grasp of the
    State’s Attorney. The State should always err on the side of disclosure, State v. Brown,
    
    327 Md. 81
    , 95, 
    607 A.2d 923
    , 930 (1992), but the right to discovery is not unlimited. Derr
    v. State, 
    434 Md. 88
    , 124, 
    73 A.3d 254
    , 275 (2013).
    24
    The history of Md. Rule 4-263 supports the conclusion that the obligation of due
    diligence does not attach until the material comes within the possession or control of the
    State’s Attorney, or a person who regularly reports to the State’s Attorney, or has reported
    to the State’s Attorney in the particular case. The Standing Committee on Rules of Practice
    and Procedure (“the Rules Committee”) submitted its One Hundred Fifty-Eighth Report to
    this Court in 2007, in which it proposed the addition of the due diligence requirement to
    Md. Rule 4-263. The purpose of the amendment was to “to clarify the State’s discovery
    obligations . . . and make other changes to discovery in a criminal action in a circuit
    court[.]” Standing Committee on Rules of Practice and Procedure, One Hundred Fifty-
    Eighth Report of the Standing Committee on Rules of Practice and Procedure at 4 (Sept.
    26, 2007). The Committee Note8 explained the addition of due diligence to the rule:
    The due diligence required by subsection (a) (1) does not require affirmative
    inquiry by the State with regard to the listed examples [of materials that must
    be disclosed under the rule] in all cases, but would require such inquiry into
    a particular area if information possessed by the State, as described in
    subsection (a) (2), would reasonably lead the State to believe that affirmative
    inquiry would result in discoverable information.
    Id. at 110 (emphasis added).
    The Committee Note highlights that the obligation for due diligence is not an
    affirmative duty, but one triggered by information in possession of the State. As an
    example, the Committee Note provides that “[d]ue diligence does not require the State to
    obtain a copy of the criminal record of a State’s witness unless the State is aware of the
    8
    A Committee Note is incorporated into the Maryland Rules. Green, 456 Md. at
    145 n.8, 171 A.3d at 1189 n.8.
    25
    criminal record. If, upon inquiry by the State, a witness denies having a criminal record,
    the inquiry and denial generally satisfy due diligence unless the State has reason to question
    the denial.” Id. at 110–11 (emphasis added). A criminal record, like a recorded statement
    of the defendant, constitutes a type of material that the State’s Attorney shall provide to the
    defense without request. Md. Rule 4-263(d)(2). The Committee Note indicates that the
    State would not have an obligation to track down a criminal record with due diligence,
    unless the State is at least aware of the criminal record.
    The history of Md. Rule 4-263(c)(1) demonstrates that the State’s Attorney does not
    have an obligation to track down a recording made by the defendant in the possession of a
    third party, unless the State’s Attorney was at least made aware of the existence of that
    recording. Once the State became aware of the recording held by a third party, it likely
    would have the obligation to exercise due diligence in identifying and obtaining the
    recording. This conclusion is underscored by the reporter’s note which acknowledged that
    the obligation of due diligence attaches to material that each party is required to provide.
    Id. at 119. Nothing in the report submitted by the Rules Committee indicated that due
    diligence obligates the State to proactively request materials that may or may not be held
    by third parties.
    In the case at bar, the State did not become aware of the recorded statements made
    by the Petitioner while incarcerated at the correctional facility until it requested and
    received such statements on Friday, August 2. Upon receipt of the materials, the State had
    had an obligation to exercise due diligence in identifying whether any of the recordings
    must be disclosed pursuant to Md. Rule 4-263(d)(1). We find nothing in the record that
    26
    indicates the State’s prior awareness of the recorded statements until it received the
    materials from the correctional facility on Friday, August 2, 2019.
    Petitioner argues that the requirement of due diligence pursuant to Md. Rule 4-
    263(c)(1) should have obligated the State to investigate the existence of any jail call
    recordings prior to the week before trial. Even if the State was not actually aware of the
    recordings, Petitioner contends that the State should have been aware of the recordings.
    Petitioner’s argument is not supported by the text or history of the rule. The plain
    text of the rule expressly omits any language that the State should proactively discover
    materials held by third parties uninvolved in the prosecution or investigation of a case. The
    history of the rule indicates that this omission was not inadvertent. Following a hearing on
    the One Hundred Fifty-Eighth Report, the Rules Committee undertook “a further review
    of the discovery process in criminal cases in light of the ABA Standards, what is ultimately
    required under both Federal and Maryland Constitutional law, and how the discovery
    process can be clarified, made more effective, and promote greater fairness and efficiency
    in overall criminal procedure.” Standing Committee on Rules of Practice and Procedure,
    Supplement to the One Hundred Fifty-Eighth Report of the Standing Committee on Rules
    of Practice and Procedure at 2 (Mar. 28, 2008) (“the Supplement”). The rule as it stands
    now reflects the changes proposed by the Rules Committee.
    In its review, the Rules Committee:
    obtained and considered both the ABA Standards and the ABA Commentary
    to them. It had available to it the discovery rules applicable in Federal
    criminal cases and the rules adopted in other States, along with relevant case
    law. All of the individuals and groups that had indicated an interest in the
    matter were invited to submit written comments regarding the ABA
    27
    Standard[s,] and whether, or to what extent, there should be any departure
    from them. The Criminal Rules Subcommittee met, [and] gave initial
    consideration to the ABA Standards and the written comments that had been
    received[.] . . .
    Id.
    This Court considered but declined to fully adopt the more permissive ABA
    Standards with respect to Md. Rule 4-263. Id. at 3. “[O]ne of the principal objectives of
    the rewriting of [Md.] Rule[] . . . 4-263 is to bring greater clarity to what is required, so
    that disputes can be avoided and the process can work more effectively. To that end, [Md.]
    Rule 4-263 provides some common examples of information . . . [that] would need to be
    disclosed. Those examples are not intended to extend the scope of discovery but better to
    define it.” Id. at 3–4 (emphasis in original).
    The Supplement also reveals an intent to make the due diligence obligation less
    demanding than the ABA counterpart. Appendix C of the Supplement9 noted that the due
    diligence requirement “is generally consistent with [ABA Standards] but is stated in
    somewhat broader terms.” Supplement, App’x C at 3.10
    9
    “Unlike a Committee Note, an appendix to a Report of the Rules Committee does
    not become incorporated into the Maryland Rules.” Green, 456 Md. at 145 n.8, 171 A.3d
    at 1189 n.8.
    10
    Assuming arguendo that the more permissive ABA due diligence obligation was
    the Maryland Rule, the State presumably still would have not violated discovery rules.
    Standard 11-4.3(b) requires the [prosecutor] to make reasonable efforts to
    ensure that information relevant to the defendant and the offense is provided
    to the prosecutor by investigative personnel. Standard 11-4.3(c) provides
    that, if the prosecutor is aware of discoverable information possessed by a
    government agency that does not report to the prosecutor’s office, the
    (continued . . . )
    28
    The Rules Committee added to Md. Rule 4-263(c) the cross-reference to State v.
    Williams, 
    392 Md. 194
    , 
    896 A.2d 973
     (2006), to illustrate, in part, the limits of the
    obligation of due diligence. Williams concerned exculpatory information pertaining to a
    registered police informant that was unknown to the assigned prosecutor, but was well
    known to the Baltimore City Police Department and the State’s Attorney. 
    Id. at 200
    , 
    896 A.2d at 976
    . While describing the disclosure obligations under Brady, this Court remarked:
    [I]t is proper to consider the State’s Attorney Office as a single entity. As
    the seeker of truth, the State, as prosecutor, cannot seek to insulate itself from
    its constitutionally mandated duty by dividing itself into pieces, thus
    permitting one piece to claim ignorance of the knowledge of the other pieces.
    . . . By enforcing a consistent standard applicable to all in the State’s
    Attorney’s Office, we believe that nondisclosures such as the one leading to
    this appeal will be avoided.
    
    Id. at 223
    , 
    896 A.2d at 990
     (emphasis added). The State violated its obligation of due
    diligence in Williams because it failed to overcome artificial divisions within its office and
    law enforcement to provide material to the defendant. The material was at all times within
    the possession, control, or at least knowledge, of the State’s Attorney or one of its agents,
    but the State failed to take reasonable steps to deliver the information to defense counsel.
    (. . . continued)
    prosecutor must disclose the existence of that information.
    
    Id.
     (Emphasis added). The ABA rule requires due diligence once the information comes
    into the possession of an investigator or the prosecutor becomes aware of the information.
    Like its Md. Rule 4-263 counterpart, the ABA rule notably omits language such as “should
    have been aware” of the information. The correctional facility was not a State investigator,
    and the State could not have been aware about the discoverable material until it received
    the recordings on August 2.
    29
    Pursuant to the plain text of Md. Rule 4-263(c)(1), persuasive commentary of the
    Rules Committee and relevant case law, the obligation of due diligence did not take effect
    in the case at bar until the State received the jail call recordings on Friday, August 2. Once
    the State acquired the recordings, it satisfied its due diligence obligation by disclosing the
    material within several days. Whether a party exercised due diligence depends on the
    circumstances of the case. See Argyrou, 
    349 Md. at 605
    , 
    709 A.2d at 1203
     (noting the
    assessment of due diligence, at least in the context of newly discovered evidence, must be
    assessed “in light of the totality of circumstances”); Joyner v. State, 
    208 Md. App. 500
    ,
    529, 
    56 A.3d 787
    , 805 (2012) (holding no discovery violation occurred when the State
    disclosed expert testimony eight days before trial because State fulfilled its continuing duty
    to disclose); Raynor v. State, 
    201 Md. App. 209
    , 229, 
    29 A.3d 617
    , 629 (2011) (concluding
    that defendant may have been surprised by the reference to previously undisclosed emails
    during trial, but the circuit court did not abuse its discretion in not granting a mistrial).
    In anticipation of trial, the State requested jail calls made by Petitioner from an
    employee at the correctional facility on Wednesday, July 31. The employee responded
    Thursday, August 1 and informed the State that it would deliver the material on Friday
    August 2. The State reviewed the calls on Saturday. The State contacted the employee on
    Sunday to request a reverse-look up of Mr. Gilbert’s number, and received the April 2 call
    at 6 a.m. on Monday, August 5.
    Three days elapsed between the State’s possession of the 201 recordings of calls
    made by Petitioner and sharing with defense counsel. The State could have immediately
    disclosed all 201 calls that it received on Friday, but under the circumstances, it would have
    30
    only provided at most two days extra notice to defense counsel. Considering these calls
    arrived on the eve of trial, sending 201 recordings, most of which the State decided not to
    use for trial, could have unduly burdened the defense with extraneous discovery review
    during a period of critical trial preparation. Baltimore Transit Co. v. Mezzanotti, 
    227 Md. 8
    , 13, 
    174 A.2d 768
    , 771 (1961) (noting the purpose of discovery is to “eliminate, as far as
    possible, the necessity of any party to litigation going to trial in a confused or muddled
    state of mind[.]”). The April 2 recording—used in the State’s case-in-chief—was shared
    with defense counsel on the same day that it was received. The State could not have shared
    the April 2 call any sooner.
    The State’s decision to request a reverse look-up of Mr. Gilbert’s phone number
    also tends to demonstrate the exercise of due diligence under the circumstances. The initial
    request of jail calls made by Petitioner did not include the April 2 call because it was made
    through the PIN number of another inmate. Regardless of whether Petitioner deliberately
    attempted to conceal the call by using another inmate’s PIN number, it would not have
    been found but for the endeavor of the State under the circumstances. We conclude that
    the State exercised due diligence in this case.
    C.     Even if the State violated its discovery obligations through its late disclosure,
    the error was harmless.
    In the past, this Court has applied harmless error review when assessing the impact
    of a discovery violation. Green, 456 Md. at 165, 171 A.3d at 1201. The purpose of the
    harmless error rule is to prevent a small error, “assuming, [arguendo], that [there] was
    error[,]” from setting aside convictions for a defect that would not have changed the result
    31
    at trial. State v. Babb, 
    258 Md. 547
    , 552, 
    267 A.2d 190
    , 193 (1970). Assuming arguendo
    that the State’s disclosure of the jail call recordings on the morning of trial violated its
    discovery obligations, it was harmless error beyond a reasonable doubt.
    “[W]hen 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. The exercise of that discretion includes evaluating
    whether a discovery violation has caused prejudice.” Warrick, 
    302 Md. at 173
    , 
    486 A.2d at 194
     (citations omitted). The rule “does not require the court to take any particular action
    or any action at all.” Bellard v. State, 
    229 Md. App. 312
    , 340, 
    145 A.3d 61
    , 78 (2016)
    (quoting Thomas, 
    397 Md. at 570
    , 
    919 A.2d at 57
    ) (emphasis added).
    The determination of the circuit court “will be disturbed on appellate review only if
    there is an abuse of discretion. That review, however, does not involve a search of the
    record for grounds, not relied upon by the [circuit] court, which the appellate court believes
    could [or could not] support the [circuit] court’s action.” North River Ins. Co. v. Mayor
    and City Council of Baltimore, 
    343 Md. 34
    , 47–48, 
    680 A.2d 480
    , 487 (1996). “An
    appellate court does not reverse a conviction based on a [circuit] court’s error or abuse of
    discretion where the appellate court is satisfied beyond a reasonable doubt that the [circuit]
    court’s error or abuse of discretion did not ‘influence the verdict’ to the defendant’s
    detriment.” Hall v. State, 
    437 Md. 534
    , 540–41, 
    87 A.3d 1287
    , 1291 (2014) (citations
    omitted). A discovery violation that unfairly surprises a defendant and prejudices the
    ability of a defendant to mount an adequate defense generally “cannot be construed as
    harmless error.” Collins, 
    373 Md. at 148
    , 
    816 A.2d at 929
    ; Thomas, 
    397 Md. at 574
    , 919
    32
    A.2d at 59 (explaining that prejudice pursuant to Md. Rule 4-263 turns on the harm
    resulting from delay in disclosure).
    In Thanos v. State, 
    330 Md. 77
    , 
    622 A.2d 727
     (1993), the circuit court declined to
    grant relief for an asserted discovery violation by the State. 
    Id. at 96
    , 
    622 A.2d at 736
    .
    According to the defendant in Thanos, “the State neglected to provide him with the names
    of three witness whom it called at trial, in violation of Maryland Rule 4-263(b)(1).[11]” 
    Id. at 96
    , 
    622 A.2d at 736
     (footnote omitted). This Court held that assuming the State violated
    Md. Rule 4-263 by failing to provide the names of three witnesses called at trial, “any error
    in the State’s discovery violations was harmless” given ample corroborating evidence. 
    Id. at 97
    , 
    622 A.2d at 736
    . The defendant had confessed to the crime, and the State provided
    testimony of a medical examiner that “independently corroborated [the defendant’s]
    confession[.]” 
    Id.,
     
    622 A.2d at 736
    . “The [circuit] court’s failure to grant relief for the
    State’s discovery violations was not reversible error.” 
    Id.,
     
    622 A.2d at
    736–37.
    Similar to the State’s corroborating evidence in Thanos, in the case at bar, the State
    presented evidence that established consciousness of guilt independent of the April 2 call.
    The State introduced the April 2 call to establish that Petitioner knew about the security
    camera footage of the shooting and that somebody had revealed the identity of Petitioner
    or Mr. Gilbert to law enforcement:
    Mr. Gilbert: It was her or somebody close to us.
    ***
    Mr. Gilbert: I ain’t done nothing.
    11
    Maryland Rule 4-263(b)(1) formerly required the State provide the defense
    without request the names of each State’s witness. This requirement is now provided by
    Md. Rule 4-263(d)(3)(A).
    33
    [Petitioner]: Shut up.
    Mr. Gilbert: Hey, I don’t. That’s how it is bro. That’s how I’m going to be,
    you feeling me? . . . There wasn’t no problem when you did that.
    [Petitioner]: Yeah.
    The conversation does not directly reference the shooting or the camera, and was
    hampered by unintelligible dialogue when played before the jury. Conversely, the text
    exchange between Petitioner and Mr. Gilbert expressly demonstrates relief that certain
    events were not caught on film by the alleyway camera where the shooting took place:
    [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[.]
    The State also provided additional evidence that established the guilt of Petitioner,
    including forensic evidence, pictures and video footage of the scene, 911 audio, and
    multiple witnesses’ testimony.
    The call also did not unfairly surprise the defendant or prejudice the ability of the
    defendant to mount a defense. Thomas, 
    397 Md. at 574
    , 
    919 A.2d at 59
    . Petitioner was
    already prepared to negate the allegation of consciousness of guilt from the text exchange
    between Petitioner and Mr. Gilbert. Petitioner emphasized throughout the trial that the
    State relied on circumstantial evidence, and the April 2 call was another example of the
    State using a chain of inferences, instead of an express statement by Petitioner, to
    demonstrate consciousness of guilt. Petitioner also chose not to address the April 2 call in
    his case-in-chief, instead presenting an argument about its authentication.          Finally,
    Petitioner argued throughout the trial, and even before this Court, that the State had a weak
    case.
    34
    We find no indication that the April 2 call, coupled with other evidence presented
    over the course of two days at trial, had substantial bearing on the outcome of the case.
    The disclosure of evidence in this case was undoubtedly last minute, but the impact of the
    disclosure did not unduly surprise the defendant, undermine the ability to prepare a defense,
    or substantially influence the jury. Thomas, 
    397 Md. at 574
    , 
    919 A.2d at 59
    . Therefore,
    the decision of the circuit court not to find a discovery violation, assuming arguendo that
    it was made in error, was harmless beyond a reasonable doubt.
    CONCLUSION
    For the reasons previously explained, we affirm the judgment of the Court of Special
    Appeals.
    JUDGMENT OF THE COURT OF
    SPECIAL APPEALS IS AFFIRMED.
    COSTS   TO   BE    PAID  BY
    PETITIONER.
    35
    Circuit Court for Montgomery County
    Case No. 135035C
    Argued: September 14, 2021
    IN THE COURT OF APPEALS
    OF MARYLAND
    No. 4
    September Term, 2021
    ______________________________________
    ERIC ANTONIO ALARCON-OZORIA
    v.
    STATE OF MARYLAND
    ______________________________________
    Getty, C.J.
    McDonald
    Watts
    Hotten
    Booth
    Biran
    Adkins, Sally D. (Senior Judge,
    Specially Assigned),
    JJ.
    ______________________________________
    Dissenting Opinion by Watts, J.
    ______________________________________
    Filed: December 21, 2021
    Respectfully, I dissent. I cannot join the Majority’s determination that in a criminal
    case the State’s requirement to exercise due diligence with respect to discovery extends no
    further than to material already within the State’s Attorney’s possession or control. See
    Maj. Slip. Op. at 22. Such an interpretation of Maryland Rule 4-263 is contrary to its plain
    language and rulemaking history.         Maryland Rule 4-263(c)(1) obligates the State’s
    Attorney to “exercise due diligence to identify all of the material and information that must
    be disclosed under this Rule.” The plain language of the subsection is not qualified or
    limited by a requirement that the State’s Attorney use due diligence to identify only
    discoverable information that is already in the State’s possession or control.
    I would not read into the subsection a requirement that does not exist and that the
    history of the Rule does not support. I would hold that the State’s Attorney in this instance
    failed to exercise due diligence by waiting until the Wednesday before a trial was scheduled
    to begin on Monday to request, as part of “last-minute” trial preparation, jail call recordings
    and by disclosing the recordings on the first day of trial. I would determine that a discovery
    violation occurred and that the error was not harmless.
    I share the view that a correctional facility does not become an agency that reports
    to the State’s Attorney by virtue of having responded to a request for jail call records and,
    as such, the records were not under the control of the State’s Attorney within the meaning
    of Maryland Rule 4-263(c)(2). See Maj. Slip. Op. at 21. A contrary result could lead to
    the illogical conclusion that any agency, or perhaps any individual, would “report” to the
    State’s Attorney within the meaning of the Rule by simply responding to a request for
    information. See Maj. Slip. Op. at 21.
    This inquiry, however, distracts from recognizing the State’s Attorney’s obligation
    under Maryland Rule 4-263(c)(1), which provides: “The State’s Attorney and defense shall
    exercise due diligence to identify all of the material and information that must be disclosed
    under this Rule.” Maryland Rule 4-263(c)(2) provides:
    The obligations of the State’s Attorney and the defense extend to material
    and information that must be disclosed under this Rule and that are in the
    possession or control of the attorney, members of the attorney’s staff, or any
    other person who either reports regularly to the attorney’s office or has
    reported to the attorney’s office in regard to the particular case.
    Clearly, material and information that must be disclosed under the Rule may be distinct or
    different from material and information that is possessed by or under the control of the
    State’s Attorney. Under a plain reading of Maryland Rule 4-263(c)(1), the State’s Attorney
    is required to use due diligence to identify all of the material and information that must be
    disclosed under the Rule regardless of whether the material and information is in the
    possession or control of the State’s Attorney.
    Maryland Rule 4-263(d) sets forth a list of material and information that the State’s
    Attorney is required to disclose without the necessity of a request. Under Maryland Rule
    4-263(c)(1), the State’s Attorney must use due diligence to identify all material and
    information that must be disclosed under section (d); and, under Maryland Rule 4-
    263(c)(2), the State’s Attorney is required to disclose all such material and information that
    is in the State’s Attorney’s possession or control. Maryland Rule 4-263(c)(1) does not limit
    the duty of the State’s Attorney to identify material and information that must be disclosed
    to a discrete look at what the State already possesses or controls. Rather, Maryland Rule
    4-263(c)(1) requires that the State’s Attorney identify or promptly follow up on identifying
    -2-
    information that must be disclosed under the Rule, such as a defendant’s oral statements,
    regardless of whether the information is in the State’s possession or control.
    Under Maryland Rule 4-263(d)(1), “[w]ithout the necessity of a request, the State’s
    Attorney shall provide to the defense[ a]ll written and oral statements of the defendant and
    of any co-defendant that relate to the offense charged[.]” No one disputes that the jail calls
    at issue in this case are “oral statements of the defendant” under Maryland Rule 4-
    263(d)(1). Because a defendant’s oral statements constitute material that the State’s
    Attorney would be required to disclose under Maryland Rule 4-263(d)(1), the plain
    language of Maryland Rule 4-263(c)(1) obligated the State’s Attorney to exercise due
    diligence in identifying the existence of the statements. The Majority concludes that
    material must be disclosed when two conditions are met—first, “the material must fall
    within the scope of discovery obligations pursuant to Md. Rule 4-263(c)(2),” and second,
    “the material must satisfy one of the several categories of information enumerated by Md.
    Rule 4-263(d).” Maj. Slip Op. at 22-23. But, the Majority fails to give effect to the plain
    language of Maryland Rule 4-263(c)(1).
    The construction of Maryland Rule 4-263(c)(1) that is consistent with its plain
    language is that a State’s Attorney must exercise due diligence to identify material and
    information that must be disclosed. The plain language of (c)(1) does not confine the
    State’s Attorney’s due diligence requirement to the scope provision of (c)(2) or use any
    limiting language. In other words, if the circumstances of a case indicate to the State’s
    Attorney that material and information described in Maryland Rule 4-263(d) exists outside
    of the State’s Attorney’s office’s possession or control, the State’s Attorney may not delay
    -3-
    in identifying the material and information. The choice of the word “identify” in Maryland
    Rule 4-263(c)(1) is instructive. Logically, if the State’s Attorney’s obligation to exercise
    due diligence with respect to oral statements of the defendant applied only to material that
    the State’s Attorney already possessed or controlled, the requirement that the State’s
    Attorney “identify” material and information that must be disclosed would be rendered
    meaningless. The plain language interpretation of the Rule would prevent the absurd
    outcome of permitting the State’s Attorney to be aware of the likelihood of oral statements
    by a defendant or exculpatory information, for example, but having no duty to exercise due
    diligence to identify the statements or exculpatory information because the statements or
    exculpatory information are in the custody of a third party and not in the State’s Attorney’s
    possession or control.
    In addition to its plain language, the history of Maryland Rule 4-263(c)(1) supports
    the proposition that the due diligence obligation extends beyond material in the possession
    and control of the State’s Attorney. In 2007, the Standing Committee on Rules of Practice
    and Procedure (“the Rules Committee”) undertook a major overhaul of the criminal
    discovery rules and issued its 158th Report, in which it, among other things, proposed
    amendments to Maryland Rule 4-263. See Rules Committee, 158th Report at 1 (Sept. 26,
    2007), available at https://www.courts.state.md.us/sites/default/files/import/rules/reports/
    158thReport.pdf [https://perma.cc/SU9T-RDTE]. In a cover letter to this Court dated
    September 26, 2007, Judge Joseph H. Murphy, then Chair of the Rules Committee,
    explained that “[a]mendments to Rule 4-263 [were] proposed to clarify the State’s
    discovery obligations under Brady v. Maryland, 
    373 U.S. 83
     (1963) and its progeny and
    -4-
    make other changes to discovery in a criminal action in a circuit court, as explained in the
    Reporter’s note that follows the Rule.” 158th Report at 4. In the 158th Report, the
    Committee note following proposed sections (a) and (b) of Maryland Rule 4-2631
    explained the due diligence requirement as follows:
    The due diligence required by subsection (a)(1) does not require affirmative
    inquiry by the State with regard to the listed examples in all cases, but would
    require such inquiry into a particular area if information possessed by the
    State, as described in subsection (a)(2), would reasonably lead the State to
    believe that affirmative inquiry would result in discoverable information.
    Due diligence does not require the State to obtain a copy of the criminal
    record of a State’s witness unless the State is aware of the criminal record.
    If, upon inquiry by the State, a witness denies having a criminal record, the
    inquiry and denial generally satisfy due diligence unless the State has reason
    to question the denial.
    158th Report at 110-11 (underlining omitted).
    This Court held an open meeting on the 158th Report and deferred consideration of
    the proposed amendment to Maryland Rule 4-263 “pending further study[.]” Court of
    Appeals of Maryland, Rules Order at 3 (Dec. 4, 2007), available at https://www.courts.
    state.md.us/sites/default/files/import/rules/rodocs/ro158.pdf      [https://perma.cc/RC3C-
    UPDX]. After we deferred consideration of the 158th Report for further study, on March
    7, 2008, the Rules Committee held a meeting and discussed the proposed amendment of
    Maryland Rule 4-263. See Rules Committee, Minutes of Meeting at 4 (Mar. 7, 2008),
    available at https://www.courts.state.md.us/sites/default/files/minutes-rules/20080307.pdf
    [https://perma.cc/QA6Q-FGX3]. Subsequently, in a Supplement to the 158th Report, the
    1
    Proposed Maryland Rule 4-263(a) and (b) later became Maryland Rule 4-263(c)
    and (d), respectively.
    -5-
    Rules Committee explained Maryland Rule 4-263(c)(1)’s relationship to the American Bar
    Association (“ABA”) Standards for Criminal Justice. See Rules Committee, Supplement
    to 158th Report at 2 (Mar. 25, 2008), available at https://mdcourts.gov/sites/default/files/
    import/rules/reports/158supplementappx.pdf [https://perma.cc/MW5A-AGHV].
    In the Supplement, the language of Maryland Rule 4-263(c)(1) was substantively
    identical to the language in subsection (a)(1) in the 158th Report. See 158th Report at 108;
    Supplement to 158th Report at 14. However, the Committee note describing the due
    diligence requirement no longer existed. See 158th Report at 110-11; Supplement to 158th
    Report at 14-15. Instead, in an appendix to the Supplement, the Rules Committee stated
    that Maryland Rule 4-263(c)(1) “is generally consistent with Standard 11-4.3(b) and (c)
    but is stated in somewhat broader terms.” Supplement to 158th Report, App. C at 3.
    According to the Rules Committee, ABA “Standard 11-4.3(b) requires the prosecutor to
    make reasonable efforts to ensure that information relevant to the defendant and the offense
    is provided to the prosecutor by investigative personnel.” 
    Id.
     (emphasis in original). And,
    ABA “Standard 11-4.3(c) provides that, if the prosecutor is aware of discoverable
    information possessed by a government agency that does not report to the prosecutor’s
    office, the prosecutor must disclose the existence of that information.” 
    Id.
    Considering this history, it is clear that the Rules Committee intended a State’s
    Attorney’s due diligence obligation under Maryland Rule 4-263(c)(1) to extend beyond the
    scope of Maryland Rule 4-263(c)(2). The Rules Committee expressly informed this Court
    that Maryland Rule 4-263(c)(1) was intended to be “generally consistent with” ABA
    Standards 11-4.3(b) and (c), but “somewhat broader[.]” 
    Id.
     ABA Standard 11-4.3(c)
    -6-
    requires that, where a prosecutor is aware of discoverable information in the possession of
    an agency that does not report to the prosecutor’s office, that information must be
    disclosed. See 
    id.
     It was against this backdrop that we adopted Maryland Rule 4-263(c)(1)
    and the requirement that a State’s Attorney exercise due diligence to identify all of the
    material and information required to be disclosed under the Rule.
    In the Appendix, the Rules Committee advised that it did not recommend adopting
    ABA Standards 11-4.3(d) and (e). See id. at 3-5. According to the Rules Committee, ABA
    Standard 11-4.3(d) provides that, if a request is made for identified material
    that would be discoverable if in the possession or control of a party but which
    is in the possession or control of others, the party must use diligent good faith
    efforts to cause the material to be made available.
    Id. at 3 (emphasis in original). ABA “Standard 11-4.3(e) permits a court to order the
    disclosure of material or information, not otherwise covered under Standard 11-4.3, upon
    a showing that the items sought are ‘material to the preparation of the case.’” Id. at 4.
    Thus, the Rules Committee stopped short of drafting the due diligence requirement of
    Maryland Rule 4-263(c)(1) to require the State to cause the “identified” material in the
    possession or control of third parties to be made available upon request. The Rule’s history
    informs, just as the Rules Committee stated, that it intended to impose a due diligence
    obligation “somewhat broader” than ABA Standards 11-4.3(b) and (c), which include the
    requirement of disclosing the existence of information in the possession of a government
    agency that does not report to the prosecutor, but less than ABA Standards 11-4.3(d) and
    (e), which require obtaining information from third parties. No one who reads the history
    of Maryland Rule 4-263(c)(1) could seriously contend that its due diligence obligation was
    -7-
    intended to be limited to identifying only information and material already in the
    possession or control of the State’s Attorney.
    The determination that the Majority reaches confining the State’s due diligence
    obligation only to material and information under its possession or control is not consistent
    with the plain language and Rule history of Maryland Rule 4-263(c)(1) and is far off the
    mark that the ABA Standards have set for discovery obligations in the legal profession.
    Even though our Rules Committee chose not to go as far as the ABA did in its due diligence
    obligation, it is clear that the Rules Committee adopted the ABA view that due diligence
    is not limited solely to identifying material and information in the possession or control of
    the State. In 2008, this Court voted unanimously to approve Maryland Rule 4-263(c)(1)
    based on the information provided by the Rules Committee in the Supplement to the 158th
    Report. We should and indeed must interpret the Rule in a manner that is consistent with
    the information that was provided to the Court by the Rules Committee at the time.
    Aside from not being consistent with the plain language of the Rule and its history,
    the Majority’s approach suffers from several serious problems. 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 Maryland 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. 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
    -8-
    State’s Attorney’s due diligence obligation until the time of the interview?             This
    interpretation of the due diligence requirement hinders, rather than advances, the purposes
    of Maryland’s criminal discovery rules, which are to protect from undue surprise and to
    assist the other party in preparing for trial. See, e.g., Green v. State, 
    456 Md. 97
    , 152-53,
    
    171 A.3d 1162
    , 1193-94 (2017). The Majority’s interpretation of Maryland 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 or control.
    The State’s argument that not limiting the due diligence requirement to information
    in its possession or control would place an untenable burden on the State’s Attorney is not
    persuasive. The facts of a case will dictate what action, if any, the State’s Attorney must
    take to use due diligence to identify material and information that must be disclosed. For
    example, if an agency that does not report to the State possesses statements of a defendant
    relating to a criminal case, but the State’s Attorney has no reason to know of it, due
    diligence would not require the State’s Attorney to seek to identify any statements of the
    defendant in the possession of the agency.
    In this case, the circumstance is different with respect to jail call recordings. Jail
    call recordings, by their very nature, are statements of the defendant. If a defendant is in
    custody before trial, it follows that the State’s Attorney would know that telephone calls
    between a defendant and others that relate to the offense charged could exist. By the State’s
    own acknowledgment at oral argument, the Assistant State’s Attorney in this case
    identified the jail calls at issue during “last-minute” trial preparation. It is reasonable to
    -9-
    expect that an Assistant State’s Attorney would perform routine trial preparation designed
    to uncover oral statements of a defendant with greater diligence than what was used here.
    The standard of due diligence is, at bottom, a question of reasonableness.
    We have not previously addressed the definition of due diligence under Maryland
    Rule 4-263. In a different context, that of the State’s due process obligation to promptly
    conduct a probation revocation hearing, due diligence is equivalent to “reasonable
    promptness[.]” State v. Berry, 
    287 Md. 491
    , 500, 
    413 A.2d 557
    , 562 (1980) (citations
    omitted). In Berry, 
    id. at 499
    , 
    413 A.2d at 562
    , we held “that the State may conduct a
    revocation hearing at any time, even if the probationary period has expired,” as long as the
    State commences such a proceeding “diligently and promptly.” This Court held that a
    probation revocation hearing need not take place during the probationary period so long as
    the violation occurred during the probationary period. See 
    id. at 498
    , 
    413 A.2d at 562
    . We
    stressed, however, that due process requires the State to “bring about the revocation hearing
    with due diligence or reasonable promptness to avoid prejudice to the defendant.” 
    Id. at 500
    , 
    413 A.2d at 562
     (citations omitted).
    In this case, given that the State acknowledged that requesting the jail call
    recordings at issue was last-minute trial preparation and has offered no reason for the delay
    in requesting the recordings that necessarily were required to be disclosed, I would hold
    that the State’s Attorney failed to exercise due diligence. Maryland Rule 4-263(c)(1)
    obligated the State’s Attorney to use due diligence to identify material and information
    required to be disclosed under the Rule, i.e., records of jail calls or statements of the
    defendant under Maryland Rule 4-263(d)(1) in this case.
    - 10 -
    Although there is no indication of bad faith in the record, the State’s Attorney failed
    to request any jail call recordings until the Wednesday before trial. The State’s Attorney
    did not disclose the recordings to defense counsel until the morning of trial. Given the
    State’s acknowledgment at oral argument that requesting jail call recordings in this case
    was simply part of last-minute trial preparation, disclosing the recordings to the defense on
    the morning of the first day of trial was unreasonable.2 The record is devoid of any good
    cause explanation for the delay and at oral argument, the State could provide none. As
    such, I would hold that the State’s Attorney violated Maryland Rule 4-263(c)(1) by failing
    to use due diligence to identify the existence of the jail call recordings.
    In this case, although there were eyewitnesses to the shooting, no eyewitness
    positively identified Petitioner as the shooter. This was a circumstantial evidence case in
    which the State relied in part on evidence of consciousness of guilt and the April 2, 2019
    jail call recording was part of the consciousness of guilt evidence. Even though the taped
    dialogue may have been difficult to understand, it is not possible to conclude beyond a
    reasonable doubt that the April 2, 2019 jail call recording did not affect the verdict.
    Because I am unable to conclude beyond a reasonable doubt that use of the April 2, 2019
    2
    The State has argued that the April 2, 2019 jail call recording should be treated
    differently because the Assistant State’s Attorney obtained it after requesting a “backwards
    search” for call records. To be sure, the request for the backwards search occurred after
    the Assistant State’s Attorney received the initial jail call recordings. The record reflects
    that the search was done quickly and that the April 2, 2019 jail call recording was produced
    early on the morning following the Assistant State’s Attorney request. This, too, was a
    part of last-minute trial preparation that, through due diligence, could easily have been
    done more promptly or earlier. There is no reason to distinguish the April 2, 2019 jail call
    recording from the others.
    - 11 -
    jail call at trial was inconsequential or did not affect the verdict, i.e., was harmless error, I
    would reverse the judgment of the Court of Special Appeals.
    For the above reasons, respectfully, I dissent.
    - 12 -
    Circuit Court for Montgomery County
    Case No. 135035C
    Argued: September 14, 2021
    IN THE COURT OF APPEALS
    OF MARYLAND
    No. 4
    September Term, 2021
    ______________________________________
    ERIC ANTONIO ALARCON-OZORIA
    v.
    STATE OF MARYLAND
    ______________________________________
    Getty, C.J.
    McDonald
    Watts
    Hotten
    Booth
    Biran
    Adkins, Sally D. (Senior Judge,
    Specially Assigned),
    JJ.
    ______________________________________
    Concurring Opinion by Adkins, J.
    ______________________________________
    Filed: December 21, 2021
    I commend both the Majority and Dissent for their cogent opinions. I find myself
    divided between them. I am persuaded by the analysis of Judge Watts with respect to the
    Rule 4-263(c)(1) due diligence requirement and how far it extends. I agree with her that
    the State’s Attorney waited too long before requesting jail call recordings.
    Yet I agree with Judge Hotten that, even if we were to say that admission of the
    telephone calls from the jail was error under the circumstances, such error was harmless.
    In the first place, the taped dialogue was hard to understand. Moreover, there was
    testimony favorable to the State from more than one eyewitness, corroborated by video
    footage and other evidence.
    I would affirm the conviction.