Be Careful What You Ask For – Document Dump Deemed Permissible Response Under Criminal Rules

Mr. Thomas was convicted of conspiracy to commit misconduct in office and accessory before the fact to misconduct in office.  One issue presented on appeal was whether the prosecution had committed a discovery violation by providing an entire Cellebrite extraction report without indicating which parts were pertinent. The trial and Appellate Court both held that there was no discovery violation.  Rogers v. State, 2026 WL 2686590 (Appl. Ct. Md. Sep. 14, 2026)(unreported).

The issue as framed by Mr. Thomas was: “Did the trial court err in admitting cell phone download reports which had not been disclosed in discovery?”

PRE-TRIAL FACTS

Mr. Thomas was incarcerated on a different charge.  While incarcerated he had a sexual relationship with a correctional officer, Ms. Rivera.  He “was also informed that inmates are not allowed to have a personal cell phone on their person within MCCF because it poses a security risk.”

Officers entered his cell and: “When the officers entered the cell, Appellant threw an item into the toilet, which was found to be a cell phone.”

The Court explained: “The cell phone was recovered, and its contents were extracted and downloaded. The extraction revealed that the phone was set up on October 7, 2019. The cell phone’s contents showed that Appellant had called Ms. Rivera more than one hundred times.”

Further: “Detective Bullock listened to Appellant’s phone calls and concluded that in some calls Appellant and Ms. Rivera discussed acquiring a cell phone, expressed their love for each other, and discussed plans to meet up. Additionally, in one phone call, Ms. Rivera referred to putting something in her shoes on October 15, 2019, and she told Appellant that she bought him Under Armour clothing, which other witnesses testified is contraband because Under Armour clothing cannot be purchased at the MCCF commissary.”

TRIAL TESTIMONY & OBJECTIONS

“The State called Detective Michael Zito, of the Montgomery County Police Electronic Crimes Unit, to testify as an expert in digital forensics. Detective Zito examined devices in the case, including a phone with the number 240-805-3864. Detective Zito testified to a report generated from ‘PurpleBuddy activation and run times’ which has to do with setting up a device.”

Defense counsel objected: “I just, I’ve never received that actual report and I would like a minute to review it. I don’t know if the expert is –….  I never received the report in discovery.”  The objection was overruled.

After the State offered the document into evidence, Appellant asked to voir dire the witness about the document on the record. Appellant confirmed that the document was provided to the State several weeks prior to trial, and then renewed the objection “based on failure to disclose.” The trial court overruled the objection and received the exhibit into evidence.

The State then offered a report containing user accounts on the device. Appellant again objected claiming that he had “never been provided this report.” The State responded that “the entire Cellebrite user report was provided” to Appellant. The trial court then admitted the exhibit.

When the State attempted to enter another set of images generated from the same report, Appellant’s counsel stated that she had “never been provided that before” and asked to voir dire the witness or see the exhibit.

The State disagreed with the objection:

The State responded that it had provided “the complete Cellebrite Reader Report used by the expert containing all of the possibile [sic] data[.]” During a bench conference, the State clarified that it had supplied the defense the entire file, which was “approximately four gigabytes.” The trial court allowed Appellant to review the documents before cross-examining the witness and overruled Appellant’s objection to the admission of the various documents into evidence.

As the direct proceeded, Appellant continued to object to the cell phone download records, which were each overruled in turn by the trial court.

APPELLATE ISSUES

Mr. Thomas “argues that the trial court erred when it admitted the various cell phone download reports because Appellant claims that the State did not disclose the reports in discovery. Appellant argues that the trial court should have determined if there was a discovery violation, and its failure to exercise that discretion constituted an abuse of discretion.”

“The State … claims that the entire extraction report with all the contents of the cell phone was disclosed, and the State had no burden beyond that to disclose what specific portions of the extraction it would be entering into evidence.”

“Under Maryland Rule 4-263, the State is required to ‘exercise due diligence to identify all of the material and information that must be disclosed under this Rule.’ Md. Rule 4-263(c)(1). Part of the State’s disclosure requirements includes ‘[t]he opportunity to inspect, copy, and photograph all documents, computer-generated evidence as defined in Rule 2-504.3(a), recordings, photographs, or other tangible things that the State’s Attorney intends to use at a hearing or at trial.’ Md. Rule 4-263(d)(9).” [emphasis added].

THE BROAD DISCOVERY REQUEST

In discovery, Mr. Thomas requested that the State produce “any books, papers, documents, recording or photographs which the State intends to use at a hearing or trial.”

On appeal, he argued “that there was a discovery violation because the State failed to disclose what specific portions of the extraction report the State would use as exhibits in the trial.”

The Court wrote:

However, the discovery rules do not require disclosing the portions of the discovery materials that the State will emphasize or enter in trial. The rule only requires that the State provides the “opportunity to inspect … all documents … that the State’s Attorney intends to use … at trial.” Md. Rule 4-263(d)(9). The State complied with that requirement when it turned over the full discovery of the cell phone records…. To require the State to point to the particular pages of an extraction report it plans to enter into evidence would approach a request for the State’s “trial strategy,” which is specifically exempted from disclosure under the discovery rules. Md. Rule 4-263(g)(1)(A). [emphasis added].

The Court held: “Given that the State provided all the material from the Cellebrite extraction report to Appellant prior to trial, there was no discovery violation. Thus, the trial court did not abuse its discretion in concluding that there was no discovery violation and in admitting the reports into evidence.”

See generally Discovery From Cell Phones – Differing Civil and Criminal Protocols in Maryland (Nov. 14, 2022).