             REPORTED

IN THE COURT OF SPECIAL APPEALS

           OF MARYLAND




               No. 1128

        September Term, 2013




JOHN RIGGINS A/K/A SEAN RIGGINS

                   v.

      STATE OF MARYLAND




   Eyler, Deborah S.,
   Kehoe,
   Rodowsky, Lawrence F.
         (Retired, Specially Assigned)

                  JJ.


         Opinion by Kehoe, J.




         Filed: May 27, 2015
         Nearly forty years ago, the Court of Appeals held that a defendant in a criminal

case has a due process right to inspect prior written statements made by prosecution

witnesses that are in possession of the State. Carr v. State, 284 Md. 455, 472–73 (1978).

Two years later, this Court held that this right existed independently of the State’s duties

imposed by the criminal discovery rules. Leonard v. State, 46 Md. App. 631, 636–37

(1980), aff’d, 290 Md. 295 (1981). This appeal requires us to apply the principles of Carr

and related decisions to decide whether a prosecutor is required to provide to defense

counsel copies of a use of force report prepared by an arresting officer who testified at

trial.

         Following a jury trial in the Circuit Court for Baltimore City, John Riggins (a/k/a

Sean Riggins) was convicted of disarming a police officer, resisting arrest, and second

degree assault. He received consecutive sentences for each conviction. Mr. Riggins

presents three contentions on appeal.

         First, he argues that the trial court erred when it declined to order the prosecutor to

disclose to defense counsel a use of force report pertaining to appellant’s arrest that had

been prepared by a police officer who testified at trial. The State concedes that a use of

force report “authored by a police officer who testified at trial [is] subject to disclosure

under . . . Jencks v. United States, 353 U.S. 657 (1957), and Carr v. State, 284 Md. 455

(1978), as implemented by Maryland Rule 4-263(d)(3) (2013).”1 The State asserts,


         1
        Md. Rule 4-263(d)(3) was revised after appellant was convicted (effective
January 1, 2014) to further designate the “written statements” provision as subsection
                                                                             (continued...)
however, that appellant’s contentions are not preserved for our review. We conclude that

the issue is preserved and we agree with the parties that the report should have been

disclosed. We cannot say that the error was harmless. Therefore, we must vacate

appellant’s convictions.

       Second, appellant contends that there was insufficient evidence to sustain his

convictions for resisting arrest because the arrest itself was illegal. We find this argument

unpersuasive.

       Third, appellant asserts that his convictions for second degree assault and resisting

arrest merged, and the trial court erred by sentencing him separately for each. This

contention is mooted by our holding that his convictions must be vacated.

       We will vacate the judgments of the circuit court and remand this case for further

proceedings.

                                          Analysis

                                I. The Use of Force Report

       Appellant’s convictions arose out of an incident that occurred when several

Baltimore police officers responded to a complaint that a man was selling drugs in a

vacant home located at 612 North Cumberland Street. When the officers arrived at the

house, they observed appellant standing in the doorway. When appellant saw the police,



       1
         (...continued)
(C), but otherwise remains substantively identical. We shall apply the 2013 version of the
rule in effect for appellant’s trial.
                                              2
he attempted to flee. This resulted in a physical altercation during which appellant was

struck with a baton.2 Three officers were involved in the mêlée: Detective Jeffrey Lilly

and Officer Carlos Moorer, both of whom testified at appellant’s trial, and an otherwise

unidentified “Officer Golimowski,” who did not.

       The Baltimore City Police Department requires its officers to prepare “use of

force” reports when the officer uses physical force in an encounter with a member of the

public. The record before us indicates that the Department maintains these reports in the

officer’s personnel file, and does not disclose the documents to third parties. Moorer

prepared a use of force report after appellant’s arrest. The issue before us is whether the

trial court erred when it denied appellant’s motion to require the prosecutor to provide

him with a copy of Moorer’s statement.

       Defense counsel first raised the issue of disclosure of the use of force reports

during pre-trial discovery. On October 5, 2012, defense counsel sent an email to the

prosecutor requesting disclosure of the use of force reports, in compliance with the

State’s continuing discovery obligations. A few days later, the prosecutor responded,

informing defense counsel that she did not have access to that information. The

prosecutor advised defense counsel that “[t]he proper way” to obtain the use of force

reports was to subpoena the Police Department. The prosecutor also informed defense




       2
         We will discuss the evidence as to the events surrounding the arrest in greater
detail in Part II of this opinion.
                                              3
counsel that the use of force reports are “part of the personnel file and are not routinely

disclosed.”

       Defense counsel then served subpoenas on the Department. The Department’s

custodian of records responded on February 15, 2012. The documents forwarded with the

response did not include use of force reports from any of the officers involved with

appellant’s arrest. Defense counsel did nothing more to obtain the use of force reports

until the first day of trial, July 15, 2013.

       On the morning of trial, the court addressed preliminary matters, selected the jury,

and then recessed for lunch. It was not until the court reconvened after the lunch recess,

but before the jury entered the courtroom, that defense counsel raised the issue of the

State’s failure to disclose the use of force reports. Defense counsel requested that the

court conduct an in camera examination of the use of force reports in light of the Court of

Appeals’ opinion in Fields v. State, 432 Md. 650 (2013).3 The trial court indicated that it

was hesitant to undertake such an effort, stating to defense counsel “[y]ou’re telling me as

the jury’s literally standing in the hall about an incident that could’ve been and should’ve




       3
         The Court of Appeals considered two issues in Fields. The first was whether the
motion court erred in declining to conduct an in camera examination of an internal affairs
division investigation of two key State’s witnesses. 432 Md. at 665-73. The Court held
that the motion court was required to conduct such an examination. Id. at 672–73. The
second issue was whether the trial court erred in refusing to permit defense counsel to
cross-examine the police officers about the subject matter of the investigation. Id. at 673-
75. The Court again concluded that the trial court erred. Id. 674–75.

                                               4
been dealt with earlier today[.]” The following colloquy then took place (emphasis

added):

      THE COURT: . . . You’re saying – you’re not asking for the results of an
      investigation. You’re not asking this court to look at what was said about
      the officers. You’re just saying you want a report that they wrote, correct?
      ....

                                          ****

      [DEFENSE COUNSEL]: Yes, and when requested of the State of the
      documents [sic], their position was that it is part of the personnel file.

      THE COURT: Well, that may be true or not, that’s not the issue. The point
      is, your subpoena goes to the custodian of records. And, whatever the State
      should turn over to you in discovery, again, is a different issue, so.

                                          ****

      And, you’re saying that the State has told you that it’s somewhere else, and
      it’s something that they did not turn over in discovery and that they should
      have, certainly. Another discovery violation. Again, if it’s what’s required.
      My point to you is, that should’ve all been done beforehand.

      You knew in January when you sent the subpoena out, and whenever, I
      don’t know, sometime in October 2012,[4] that you weren’t getting the
      documentation. So, your recourse would’ve been to go to the discovery
      Judge; that not done that [sic], and doing this at this late hour, is
      problematic to the Court. . . .

                                          ****

      [Y]ou have not brought [the Department’s failure to comply with the
      subpoena] to the discovery Judge, where you had the opportunity to do this.




      4
       The trial court misspoke; the Department’s response to the subpoena was mailed
on February 15, 2012.
                                             5
      To do this now at trial is, again, as I stated is problematic. I note your
      objection. We’re going to move on. I note your objection, and I will –

      [DEFENSE COUNSEL]: May I just make –

      THE COURT: You can in one second, hold on . . . .

      THE COURT: Okay, all right. What else do you want to say . . . .

      [DEFENSE COUNSEL]: Essentially, that the State’s duty to disclose, is
      ongoing. And, we are not in a position where we’re asking for a
      postponement. We’re simply asking that the Court order the State to
      produce those documents. And, we’re not seeking to halt the trial in any
      way. We were just simply asking that the State produce these documents.

      THE COURT: Well, now, that’s a different issue. We are at a point where
      you are asking them to produce something; they’re saying it’s not within
      their purview. Maybe that’s true, maybe it’s not. If we find – if we go
      forth and we find that the Court is wrong, which is possible – then, if Mr.
      Riggins is found guilty . . . . then there’s a perfect issue on appeal.

      I’m going – I’m a Trial Court. I’m going to proceed with the trial. I believe
      that those discovery issues should’ve been resolved in a different way. I
      agree that discovery is always ongoing, and it’s always on the State to
      provide information.

      But, since it was requested, not turned over; and, again, the reason allegedly
      – and, again, this was presented to the Court, that it is within the police
      department; the State doesn’t have it. The Court of Appeals will listen to
      that argument, if it comes to that.

      But, right now, the motion to order the State to turn over use of force
      reports that may exist that were requested in discovery, but then again not
      brought to the Court’s attention about any discovery violation is denied. . . .

      In order to clarify the record, the trial court then asked the prosecutor whether she

“[had] a copy of what [defense counsel is] referring to?” The prosecutor responded:




                                             6
“I do not have a copy of it, Your Honor. I’ve never seen these documents. I don’t know

anything about them.” The trial court directed that the jury be brought into the courtroom

and trial commenced.

       The State’s only witnesses were Lilly and Moorer, two of the officers involved in

appellant’s arrest. Moorer provided detailed testimony as to appellant’s actions. On cross-

examination, defense counsel asked Moorer if he had prepared a use of force report and if

“that report essentially depicted . . . what occurred” at the time of appellant’s arrest.

Moorer answered both questions in the affirmative. Moorer further testified that he did

not have a copy of the report with him at trial. Defense counsel did not ask to see the

report or object at that time to the reports’ unavailability.5

       Appellant contends that “[t]he trial court abused its discretion by not ordering the

State to turn over Officer Moorer’s” use of force report. For its part, the State concedes

that the court erred but, as we have said, contends that appellant’s contentions are not

preserved for review. A brief tour of the legal landscape will assist in assessing the

State’s preservation argument.




       5
        For his part, Lilly testified that he had not prepared a use of force report, but that
his supervisor did. Lilly did not bring a copy of the report to trial.
                                                7
(1)    A Defendant’s Right to Inspect Pre-Trial Statements by Prosecution
       Witnesses: Jencks v. United States, 353 U.S. 657 (1957); Carr v. State, 284 Md.
       455 (1978); and Leonard v. State, 46 Md. App. 631 (1980), aff'd, 290 Md. 295
       (1981).

       The opportunity to cross-examine a prosecution witness based on a prior written

statement about the events for which the accused is on trial protects the right of

confrontation. In the landmark decision Jencks v. United States, 353 U.S. 657, 666–67

(1957), the Supreme Court reversed convictions because the Government refused to allow

defense counsel to inspect written reports made by two prosecution witnesses. Rejecting

the Government’s argument that the accused had to establish inconsistency between the

contents of the reports and the witnesses’ trial testimony before inspection was required,

the Court held that:

       We hold . . . that the petitioner is entitled to inspect the reports to decide
       whether to use them in his defense. Because only the defense is adequately
       equipped to determine the effective use for purpose of discrediting the
       Government’s witness and thereby furthering the accused’s defense, the
       defense must initially be entitled to see them to determine what use may be
       made of them. Justice requires no less.

Id. at 668–69 (footnotes omitted).

       The Court of Appeals adopted the Jencks disclosure principles in Carr v. State,

284 Md. 455, 472–73 (1978). At issue in Carr was whether the trial court erred in

denying a defense request to inspect a signed statement made by a prosecution witness on

the morning after the shooting for which the defendant was on trial. The writing




                                              8
contained statements inconsistent with the witness’s testimony. Id. at 458. The Carr Court

explained:

       Every skilled trial advocate knows the crucial importance in such situations
       of cross-examination. Effective cross-examination here made it necessary
       that defense counsel be permitted to directly confront the witness with his
       inconsistent prior statement. To deny to defense counsel the tool necessary
       for such adequate cross-examination under these circumstances amounts in
       our view to a denial to the defendant of due process of law. Hence, a new
       trial is mandated.

Id. at 472–73.

       In Leonard v. State, 46 Md. App. 631, 637-38 (1980), aff’d, 290 Md. 295 (1981), a

victim testified on cross-examination that she had given a written statement to the police,

whereupon defense counsel immediately requested “a copy of that[.]” 46 Md. App. at

635. The prosecutor objected, stating that “this is the first time [defense counsel] has

formally asked me for this document,” that he was conducting “a fishing expedition,” and

that there was no foundation for admitting the statement as a prior inconsistent statement.

Id. The trial court reviewed the statement, found “no exculpatory material in it,” and

refused to permit defense counsel to inspect it. Id. at 636-37. This Court reversed,

explaining that “Carr makes clear . . . that a defendant’s right, at trial, to inspect the prior

statement of a State’s witness who has testified is not necessarily limited (1) by the rules

pertaining to pretrial discovery, or (2) to statements that are merely exculpatory.” Id. at

637. “When confronted with the actual testimony of a critical witness and the knowledge

that the witness has given a prior statement bearing on a material issue in the case,” the



                                                9
right to inspect that statement protects the defendant’s right to confront the witness. Id. at

637–39.6

       The reasoning and holdings of Carr and its progeny are reflected in Maryland’s

criminal pre-trial discovery rule. Md. Rule 4-623(d)(3) states that a State’s Attorney must

disclose “all written statements of [a State’s witness] that relate to the offense charged[.]”

The State’s Attorney must use “due diligence to identify all of the material . . . that must

be disclosed under this Rule.” Rule 4-263(c)(1). Moreover, “[t]he obligations of the

State’s Attorney . . . extend to material and information . . . in the possession or control of

the attorney . . . [and] any other person who . . . has reported to the attorney’s office in

regard to the particular case.” Rule 4-263(c)(2). The State’s Attorney must provide this

information “[w]ithout the necessity of a request” from defense counsel. Rule 4-263(d).

(2)    A Defendant’s Right to Inspect Otherwise Confidential Records: Robinson v.
       State, 354 Md. 287 (1999); Zaal v. State, 326 Md. 54 (1992); and Fields v. State,
       432 Md. 650 (2013).

       The State’s obligation to provide pre-trial written statements by witnesses extends

to police records that are otherwise confidential. In Robinson v. State, 354 Md. 287

(1999), the Court considered whether Carr and other decisions required disclosure of

written statements made by police officers in the course of an internal affairs division

investigation pertaining to Robinson’s arrest. During trial, the court reviewed the



       6
       This Court’s decision in Leonard was affirmed in a per curiam decision by the
Court of Appeals “[f]or the reasons set forth by Judge Wilner in Leonard v. State, 46 Md.
App. 631, 421 A.2d 85 (1980).” 290 Md. 295, 295–96 (1981).
                                               10
statements in camera, but refused to let defense counsel see them, on the ground that the

officers had been exonerated as a result of the investigation. Id. at 292–93. At both the

trial and appellate levels, the State argued that the records were not in the prosecutor’s

possession, asserting that “because the records are confidential . . . the prosecutor was not

entitled to them and therefore not in possession of them.” Id. at 306 (internal quotation

marks omitted). The Court of Appeals did not agree:

       Confidentiality does not ordinarily negate possession, actual or
       constructive. In other words, that a statement may be confidential goes to its
       discoverability, rather than to who possesses it. In this State, each major
       police department has an IAD division. Consequently, because that division
       is a part of the police, its records are in the possession of the police. And if
       the police is an arm of the prosecution, it follows that the records are also
       constructively in the possession of the prosecution . . . .

Id. at 309. The Court held that, even though the internal affairs records were confidential

and “not, on that account, shared with, or readily available to, the prosecution[,]” neither

the police department’s claim of confidentiality, nor the prosecutor’s claim of

inaccessibility could defeat the accused’s right to review them. Id. at 309–13. The Court

held that the trial court erred in conducting an in camera review of the statements.

Instead, defense counsel should have been permitted to inspect the statements at trial, in

accordance with “the Jencks/Carr/Leonard line of cases.” Id. at 312. The Court

concluded:

       In this case, the defendant has a particularized need for access to the
       officers’ statements, to test the officers’ trial testimony. On the other hand,
       the officers have been exonerated by the IAD investigation; thus, any



                                              11
       privacy interest in their statements that may have existed is no longer
       applicable.

Id. at 313.

       The appropriate procedure can vary according to the nature of the documents in

question. In Zaal v. State, 326 Md. 54, 83–87 (1992), the Court held that, before

inspecting the educational records of an alleged victim of child abuse, the defendant was

required to show a need for pre-trial disclosure, and once that need was established, the

trial court was to review the records in camera to strike a balance between the victim’s

privacy interest and the defendant’s right to a fair trial.

       In Fields v. State, 432 Md. 650 (2013), the issue was a defendant’s access to

records of an IAD investigation into allegations that two police witnesses had falsified

their time sheets. After reviewing summaries of the records in camera, the trial court

refused to allow defense counsel to inspect them. Id. at 663. The Court of Appeals

recognized that “‘internal affairs records involving alleged administrative rule violations’

by police officers are ‘personnel records’ under [the Maryland Public Information Act],’”

which generally “are ‘mandatorily exempt from disclosure by the custodian of

records[.]’” Id. at 666. That notwithstanding, the Court explained that “[a] person facing

criminal charges may be entitled nonetheless to discovery of confidential personnel

records[,]” because even a legitimate “confidentiality interest” in such material “must

yield, in the appropriate case, to the defendant’s interest in having an opportunity to

mount a defense and confront the witnesses against him.” Id. at 666, 672 (citing


                                               12
Robinson, 354 Md. at 308). The Court repeated its “prior admonition in Zaal that a court

in reviewing material for discovery purposes may deny a defendant any form of access to

the material only if nothing in it, ‘in anyone’s imagination, [could] properly be used in

defense or lead to the discovery of usable evidence.’” Id. at 670 (quoting Zaal, 326 Md. at

88). The Fields Court held that “the motion court, at a minimum, had the obligation to

review the internal affairs files, not simply the summaries, to decide whether the files

contained anything ‘even arguably relevant and usable’ by the defense to impeach the

detectives and, only if the answer . . . [is] ‘no,’ then ‘deny the defendant total access to

the records.’” Id. at 670–71 (quoting Zaal, 326 Md. at 88) (emphasis in Fields).

       Collectively, these authorities underscore several principles that are pertinent to the

case before us. First, “the significance, to an accused, of determining whether a witness’

trial testimony is inconsistent with the witness’ prior written statement on the subject”

establishes a “particularized need” for disclosure of otherwise confidential records related

to the accused’s arrest. Robinson, 354 Md. at 301. Second, at least as regards witness

statements made in the course of internal investigations that have been completed, the

police witness no longer has a sufficient privacy interest in the statement to warrant non-

disclosure. Id. at 313. Third, in other situations, the court—and not the prosecutor or the

police department—is to decide whether disclosure is appropriate, and the court should

order disclosure if the records contain information “even arguably relevant and usable” by

the defendant. Fields, 432 Md. at 670; Zaal, 326 Md. at 88. Finally, statements by police



                                              13
officer witnesses are in the constructive possession of the prosecutor. Robinson, 354 Md.

at 311.

          With these lessons in mind, we return to the case before us.

(3)       The Trial Court’s Ruling.

          Although the trial court “[a]bsolutely agree[d]” with defense counsel that any use

of force reports written by the officers involved in arresting appellant “were not immune

from discovery,” the court focused on appellant’s failure to seek pretrial relief for the

State’s non-disclosure. In our view the colloquy between the court and counsel reveals

misunderstandings about the State’s disclosure obligations both in pretrial discovery and

during trial, under the Jencks-Carr-Leonard and Robinson-Fields lines of cases. We

explain.

          We first address the State’s pretrial discovery obligations. The trial court, defense

counsel, and the prosecutor agreed that any use of force report authored by a testifying

officer involved in arresting appellant was subject to pretrial disclosure, as a written

statement of a prosecution witness under Rule 4-263(d)(3). Nonetheless, when defense

counsel inquired about such statements during pretrial discovery, the prosecutor informed

defense counsel that she did “not have access to th[at] information,” and advised defense

counsel that “[t]he proper way” to obtain the reports was to subpoena the Police

Department. This response reflects a misconception of the prosecutor’s obligations under

Rule 4-263. It is the State’s affirmative duty to disclose any written statement by a



                                                14
witness whom the State plans to call at trial. See Md. Rule 4-263(d)(3). Further, the trial

court and the prosecutor mistakenly distinguished the disclosure obligations of the State’s

Attorney from those of the Baltimore City Police Department. That the use of force

reports were in the physical possession of the Department did not obviate the State’s

responsibility to disclose them. “[O]rdinarily the police are an arm of the prosecution, for

purposes of the Jencks/Carr analysis, and, thus, a disclosure requirement applicable to the

prosecution applies to them as well.” Robinson, 354 Md. at 304 (citing Barbee v. Warden,

Md. Penitentiary, 331 F.2d 842, 846 (4th Cir. 1964) (“The police are also part of the

prosecution, and the taint on the trial is no less if they, rather than the State’s Attorney,

were guilty of the nondisclosure.”)).

       Accordingly, the prosecutor should have attempted to obtain any use of force

reports concerning appellant’s arrest. If the Department asserted that the documents were

confidential, the prosecutor should have referred the matter to the court. See Md. Rule 4-

263(m)(1)-(2) (“On motion of a party, [or] a person from whom discovery is sought,

. . . the court, for good cause shown, may order that specified disclosures be denied or

restricted in any manner that justice requires” or “may permit any showing of cause for

denial or restriction of disclosures to be made in camera.”) (emphasis added). It is evident

from the case law and the language of the rule that neither the prosecutor nor the

Department can make a unilateral decision to refuse disclosure. See Md. Rule 4-

263(g)(1)(B) (A State’s Attorney is not “required to disclose . . . material or information



                                               15
if the court finds that its disclosure is not constitutionally required and would entail a

substantial risk of harm to any person that outweighs the interest in disclosure.”)

(emphasis added).

       The trial court’s ruling was based upon defense counsel’s failure to raise the

State’s non-disclosure both during discovery and before the jury was selected. Defense

counsel could have raised the issue earlier but, by focusing exclusively on defense

counsel’s failings, the trial court failed to give proper consideration to the prosecutor’s

contribution to the problem before it. In our view, that contribution was considerable. The

prosecutor was presumably aware of the Jencks/Carr/Robinson line of cases. In light of

the charges against appellant, the prosecutor should have anticipated that one or more of

the officers involved had prepared a use of force report. Under the circumstances, it was

the prosecutor’s affirmative duty to obtain any reports. The prosecutor did not discharge

her duty—she admitted that, as of the day of trial, she had not seen the reports and

“[d]idn’t know anything about them.”

       The trial court denied appellant’s motion on the basis of defense counsel’s failure

to raise the State’s non-disclosure on a timely basis. The trial court’s ruling was

inconsistent with the Jencks/Carr line of cases, which make it clear that a defendant’s

“right, at trial, to inspect the prior statement of a State’s witness” is separate from his

right to obtain that statement in pretrial discovery. See Leonard, 46 Md. App. at 637.




                                               16
(4) The State’s Preservation Argument.

       As we have noted, the State asserts that appellant failed to preserve this issue for

appellate review. The State makes two arguments in support of this contention. Neither

argument is persuasive.

       First, the State asserts that appellant’s trial counsel argued only that the prosecutor

failed to fulfill her discovery obligations, while on appeal, appellant asserts that his fair

trial rights under Carr and Robinson were violated when the trial court refused to order

disclosure of the use of force report. We do not agree with the State’s characterization of

defense counsel’s argument to the trial court. To be sure, counsel did assert that there had

been a violation of Rule 4-263 but counsel also contended, and we believe that the trial

court understood counsel to contend, that the prosecution’s disclosure obligation extended

through trial.7 This is sufficient to preserve appellant’s challenge for this Court.

       Second, the State contends that appellant waived his claim of error because

defense counsel failed to renew her request to inspect the use of force report after Moorer


       7
       For the reader’s convenience, we set out again the relevant exchange between
counsel and the trial court (emphasis added):

       [DEFENSE COUNSEL]: Essentially, that the State’s duty to disclose, is
       ongoing. And, we are not in a position where we’re asking for a
       postponement. We’re simply asking that the Court order the State to
       produce those documents. And, we’re not seeking to halt the trial in any
       way. We were just simply asking that the State produce these documents.

       THE COURT: Well, now, that’s a different issue. We are at a point where
       you are asking them to produce something; they’re saying it’s not within
       their purview. Maybe that’s true, maybe it’s not.

                                               17
testified. We do not agree. Counsel had unsuccessfully litigated the issue of whether she

could inspect the use of force statement during trial. The trial court had made clear that it

would not order the prosecutor to produce the use of force reports under either of the

theories presented by defense counsel and, moreover, the prosecutor admitted that she did

not have the report and had no knowledge of its contents. Against this backdrop, another

request to inspect Moorer’s report was not necessary to preserve appellant’s assignment

of error. See Massey v. State, 173 Md. App. 94, 117 (2007) (“While the burden rests with

the defense to invoke the [State’s obligation to disclose under Carr and Leonard] ‘[n]o

ritual of words’ is required, but the defendant must plainly tender to the Court the

question of the producibility of the document at a time when it is possible for the Court

to order it produced, or to make an appropriate inquiry.’” (quoting United States v.

Hanna, 55 F.3d 1456, 1459 (9th Cir. 1995) (citations omitted) (emphasis in Hanna). We

turn to the appropriate appellate remedy.

       The State’s case rested entirely upon the credibility of Officers Moorer and Lilly.

“‘In a jury trial, judging the credibility of witnesses is entrusted solely to the jury, the trier

of fact; only the jury determines whether to believe any witnesses, and which witnesses to

believe.’” Fields, 432 Md. at 677 (quoting Robinson, 354 Md. at 313)). Under the

circumstances, we cannot conclude beyond a reasonable doubt that the trial court’s error

did not affect the outcome of the trial and the State does not suggest otherwise. We must

vacate appellant’s convictions and remand this case for further proceedings. Those



                                                18
proceedings should include an effort by the State’s Attorney to obtain a copy of Moorer’s

use of force report. If either the Department or Moorer objects to disclosure of the report,

the trial court must review the report in order to decide whether Moorer’s and the

Department’s interest in confidentiality outweighs appellant’s rights to a fair trial. See

Fields, 432 Md. at 670–71.

                       II. The Sufficiency of the Evidence for the
                               Resisting Arrest Conviction

       Appellant contends that “the evidence was insufficient to find [him] guilty of

resisting arrest because the State failed to prove that he was resisting a lawful arrest.”

Even though we have vacated appellant’s convictions, we must address his sufficiency

challenge. See, e.g., Bircher v. State, 221 Md. App. 376, 397–98 (2015) (“[I]f we agree

with appellant that the evidence was insufficient, the Double Jeopardy Clause to the

United States Constitution prohibits a retrial based on the prosecution’s failure to present

sufficient evidence the first time around.”).

       We will conclude that the evidence is sufficient if, viewing the evidence in the

light most favorable to the State, “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979) (emphasis in original); State v. Smith, 374 Md. 527, 533 (2003). After assessing

the evidence in the light most favorable to the State, a reasonable jury could conclude the

following.




                                                19
       At about 2 p.m. on January 30, 2012, several Baltimore City police officers

responded to a complaint that a man wearing a black jacket was selling drugs inside a

vacant row house located at 612 North Cumberland Street. Among the responders were

Moorer and Lilly.

       Lilly testified that, when he arrived at the row house, he saw a man wearing a

black coat with a fur hood at the door. The man, whom Lilly identified as appellant,

stepped back into the house as soon as he saw the police. Shortly thereafter, Lilly heard

over the radio that the man was fleeing from the rear of the house, and Lilly ran down an

adjacent street to cut him off. While running, Lilly saw the man jump on top of a

freestanding wooden door, separating the street from an alley.8 Lilly testified that he

could not see appellant’s hands and that appellant was wearing “a big jacket[.]” Lilly was

concerned that appellant might be armed, so he drew his service weapon and told

appellant to get off the door. Appellant did not comply, and the door collapsed under him.

Appellant then ran into the alley.

       After holstering his handgun, Lilly pursued appellant into the alley, whereupon

appellant stopped and turned to face the officer. Lilly ordered appellant “to get down,”

and placed one hand on appellant’s left shoulder “to force him down” while radioing their

location. Appellant then tackled Lilly at the waist and both men fell to the ground,



       8
       The witnesses used the term “alley.” From photographs in the record, the “alley”
appears to be no more than four feet wide—“passageway” might be a more appropriate
term.
                                             20
wrestling and punching one another. In the ensuing struggle, appellant pulled Lilly’s

handgun from its holster.

       About this time, Moorer arrived at the scene. He testified that he heard Lilly yell

that “his gun was out of his holster.” He described appellant as being “over top of Lilly,

just banging” him and “throwing strikes in his face.” Moorer tried to pull appellant off of

Lilly, whereupon appellant began to strike Moorer. After retrieving and holstering his

weapon, Lilly struck appellant several times with a baton, but appellant was “still

fighting” with the officers. Eventually, appellant said “I quit,” and the officers were able

to handcuff him.

       Moorer suffered a hand injury, which was treated at the scene, and appellant was

treated at a hospital for scrapes and bruises. Photographs of the injuries, Lilly’s torn and

soiled uniform, and the alley were admitted into evidence. We next consider whether this

evidence was sufficient to support a conviction for resisting arrest.

       Resisting arrest is a statutory crime9 that encompasses “the well-defined

parameters of Maryland common law concerning resisting arrest.” McNeal v. State, 200

Md. App. 510, 528 (2011), aff’d on other grounds, 426 Md. 455 (2012). As the trial court

correctly instructed the jury, one of the elements of this offense is “that the arrest was

lawful, that is that the officer had probable cause to believe that the Defendant had

committed the crime of second degree assault.”


       9
        Md. Code, § 9-408(b)(1) of the Criminal Law Article states in pertinent part
that:“[a] person may not intentionally . . . resist a lawful arrest.”
                                              21
       An arrest takes place at the point “(1) when the arrestee is physically restrained, or

(2) when the arrestee is told of the arrest and submits[,]” which may occur by means of

“‘any act that indicates an intention to take him into custody and that subjects him to the

actual control and will of the person making the arrest.’” Little v. State, 300 Md. 485, 510

(1984) (citation omitted). When a warrantless arrest is not supported by probable cause,

an individual may use reasonable force to resist. Barnhard v. State, 325 Md. 602, 614

(1992).

       Appellant contends that the officers made two attempts to arrest him, neither of

which was supported by probable cause, and thus his resistance was justified. Appellant

asserts that the first attempt occurred when Lilly “first saw [appellant] jump on the

wooden door out of the alley, [as] he pulled his gun and commanded him to get off the

door,” then chased him into the alley, where he put his hand on appellant’s shoulder “to

have control of him” by forcing him down. Appellant contends that the second attempted

arrest took place when Moorer “jumped on him,” while he was struggling with Lilly.

Appellant maintains that because he “was still resisting an illegal arrest” by Lilly when

Moorer attempted the second arrest his “lawful use of force in resisting one illegal arrest

should not be the basis for a lawful arrest that results in a resisting arrest conviction.”

       The State responds that the initial encounter between Lilly and appellant was an

investigatory or “Terry” stop supported by a reasonable suspicion that criminal activity

was afoot, and that “Lilly’s conduct was at most a ‘hard take-down’—an investigatory



                                               22
stop accompanied by arrest-level force—which still falls short of the arrest claimed by

appellant.” We agree.

       “In determining whether an investigatory stop is in actuality an arrest requiring

probable cause, courts consider the ‘totality of the circumstances.’” In re David S., 367

Md. 523, 535 (2002). “Not every seizure of a person is ‘elevated automatically into an

arrest,’ simply because the police used ‘measures . . . more traditionally associated with

arrest than with investigatory detention.’” Barnes v. State, 437 Md. 375, 391 (2014)

(citations omitted). When a police officer directs a person to stop but the person instead

flees, there is neither restraint nor submission to custody. See Wynn v. State, 69 Md. App.

536, 541-42 (1987). At times, arrest-level force may be warranted in making a stop, “to

protect officer safety or to prevent a suspect’s flight.” Elliott v. State, 417 Md. 413, 429

(2010).

       Lilly testified that when he arrived at 612 North Cumberland Street appellant

immediately retreated into the house upon seeing the police, and fled out the back.

Appellant then refused to comply with Lilly’s commands and continued to run into the

alley. Fearing for his safety, Lilly briefly drew his service weapon, but holstered it before

chasing appellant into the alley. When Lilly encountered appellant in the alley, he did not

draw his weapon; instead, he gave appellant “more commands to get down.” Lilly

testified that he put his hand on appellant’s shoulder “to force him down,” to get “control

of him, and also get on the air to let the rest of the units know where [his] location was.”



                                              23
       Based on this testimony, we conclude that Lilly was making an investigatory stop

supported by a reasonable suspicion that appellant had knowledge of the reported drug

activity. Given the threat to his safety during appellant’s initial flight from the house

through his eventual confrontation with appellant in the alley, the officer acted reasonably

in using physical force. Lilly did not draw his weapon when appellant turned to face him

in the alley; instead, he instructed appellant to get down while simultaneously calling for

assistance with one hand and placing the other on appellant’s shoulder. Such force was

reasonable to ensure the officer’s safety and prevent appellant’s further flight. See Elliott,

417 Md. at 429.

       Appellant’s use of force to thwart Lilly’s lawful Terry stop gave Moorer probable

cause to arrest appellant. A citizen may not use force to thwart a lawful Terry stop. Hicks

v. State, 189 Md. App. 112, 125 (2009); Barnhard v. State, 86 Md. App. 518, 528 (1991),

aff’d on other grounds, 352 Md. 602 (1992). When appellant punched Moorer in the

course of Moorer’s attempt to arrest him, appellant resisted a lawful arrest. The evidence

was sufficient to convict appellant of resisting arrest.

       Because appellant does not contest that his other convictions were supported by

sufficient evidence, we shall remand for further proceedings on all counts, including a

new trial if appropriate.




                                              24
                                          III. Merger

       Appellant was sentenced to the following terms of incarceration: six years for

disarming a police officer, a consecutive two years for resisting arrest, and another

consecutive two years for second degree assault. In his final assignment of error,

appellant contends that “[t]he trial court erred by sentencing [appellant] for both the

resisting arrest and second degree assault convictions because those offenses merge under

the required evidence test.”

       This complaint stems from an alleged “factual ambiguity in the record as to

whether both offenses were predicated upon the same conduct[.]” The ambiguity arises

out of the trial court’s jury instructions. The court instructed the jury that, in order to find

appellant guilty of assault:

       the State must prove that the Defendant caused offensive physical contact to
       Jeffrey Lilly. The contact was the result of an intentional or reckless act of
       the Defendant, and was not accidental. . . . (Emphasis added.)

       With regard to resisting arrest, the court instructed:

       the State must prove one, that a law enforcement officer attempted to arrest
       the Defendant. Two, the Defendant knew that a law enforcement officer
       was attempting to arrest him. Three, that the Defendant intentionally
       refused to submit to the arrest and resisted the arrest by force, or threat of
       force. And, four, that the arrest was lawful, that is that the officer had
       probable cause to believe that the Defendant had committed the crime of
       second degree assault. (Emphasis added.)

       As a general rule, convictions for second degree assault of the battery variety and

resisting arrest merge when the object of the battery is the arresting officer. See Nicolas v.



                                               25
State, 426 Md. 385, 405–06 (2012). When the record is unclear as to the factual basis of

the jury’s decision, the ambiguity is resolved in favor of the defendant and the convictions

merge. Id. at 409–10. The jury instructions are ambiguous because the jury could have

concluded that Lilly was attempting to arrest appellant. If this were the case, then the

convictions would merge. If, on the other hand, the jury concluded that Moorer arrested

appellant and that appellant assaulted Lilly, there would be no merger. We believe that an

instruction making this distinction would be warranted in the event that this case is retried

on remand.




              THE JUDGMENTS OF CONVICTION ARE VACATED. THE CASE
              IS REMANDED TO THE CIRCUIT COURT FOR BALTIMORE
              CITY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
              OPINION.

              COSTS TO BE PAID BY THE MAYOR AND CITY COUNCIL OF
              BALTIMORE.




                                             26
