Paul v. State

Barry Dionte Paul v. State of Maryland, No. 1352, September Term, 2024. Opinion by Leahy, J. HEADNOTES CRIMINAL LAW – SENTENCING – STATUTORY ENHANCEMENTS – APPRENDI Under Apprendi v. New Jersey, other “than the fact of a criminal conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 266, 489 (2000). Under this test, a sentence can violate Apprendi only if the purportedly enhanced sentence exceeds the statutory maximum for an unenhanced sentence. Oken v. State, 378 Md. 179, 207 (2003). The State sought a 28-year sentence, using a five-year sentencing enhancement to exceed the 25-year statutory maximum for first-degree assault. The sentencing judge purported to apply this enhancement, sentencing the defendant to 20 years for first-degree assault with a five-year statutory enhancement. The defendant appealed, citing Apprendi, and the State did not challenge this assertion of error, instead calling any error harmless. The Appellate Court held that the defendant’s sentence does not violate Apprendi because his ultimate sentence is within the unenhanced statutory range for first-degree assault. CRIMINAL LAW – SENTENCING – STATUTORY ENHANCEMENTS A sentence enhancement may be imposed under Section 3-601.1 of the Criminal Law Article (“CR”) only after its predicate elements are found beyond a reasonable doubt by the trier of fact at trial. Unlike Apprendi, this requirement applies even where the enhanced sentence does not exceed the prescribed statutory maximum for the underlying crime. Here, the jury never made such a finding. The sentencing judge thus lacked the authority to impose the enhancement as “separate from and consecutive to” the underlying sentences under CR § 3-601.1(e). Circuit Court for Prince George’s County Case No. C-16-CR-23-001270 REPORTED IN THE APPELLATE COURT OF MARYLAND No. 1352 September Term, 2024 ______________________________________ BARRY DIONTE PAUL v. STATE OF MARYLAND ______________________________________ Leahy, Albright, Kehoe, Christopher B. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Leahy, J. ______________________________________ Filed: August 28, 2026 Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2026.08.28 '00'04- 11:20:35 Gregory Hilton, Clerk  A jury in the Circuit Court for Prince George’s County found appellant, Barry Dionte Paul, guilty of assault in the first and second degree, reckless endangerment, and burglary in the fourth degree. In doing so, the jury necessarily credited testimony that Paul broke into his girlfriend’s apartment, then punched and strangled her until she had a seizure. Video evidence suggests that she and her friend wrote statements for the police, but those statements were never found and thus not produced to Paul. Before trial, the State notified Paul of its intent to seek an enhanced sentence under Maryland Code (2002, 2021 Repl. Vol.), Criminal Law Article (“CR”) § 3-601.1, which adds up to five years if, beyond a reasonable doubt, Paul strangled his girlfriend knowing that “a minor who [was] at least 2 years old [wa]s present in [the] residence.” CR § 3-601.1(a)(1). The court imposed this enhanced sentence, even though the jury was never asked whether Paul knew or reasonably should have known that he committed his crimes in the presence of a qualifying minor. Paul filed a timely appeal and presents three questions for our review, which we rephrase as: I. Did the trial court’s imposition of an enhanced sentence without related jury findings violate Apprendi v. New Jersey, 530 U.S. 266 (2000)? II. Did the trial court abuse its discretion by letting the victim and another witness testify, even though their written statements were not produced to Paul?  III. Did the trial court err by imposing separate sentences for first-degree assault and reckless endangerment?1 First, we hold that Paul’s enhanced sentence does not violate Apprendi because his ultimate sentence is within the statutory range for first-degree assault. Instead, we hold that the court violated CR § 3-601.1 by imposing its separate, consecutive 5-year sentence when the statute’s predicate elements were not found, beyond a reasonable doubt, by the trier of fact at trial. Second, we hold that the trial court did not abuse its discretion when it allowed the testimony of the victim and a witness. Third, under principles of merger, the trial court should not have imposed separate sentences for first-degree assault and reckless endangerment. Accordingly, we affirm Paul’s convictions, but we reverse Paul’s five-year enhanced sentence and vacate and remand his remaining sentences for resentencing. 1 Appellant’s questions as originally presented to this Court are: 1. Did the trial court err in sentencing Mr. Paul pursuant to § 3-601.1 of the Criminal Law Article? 2. Did the trial court abuse its discretion by failing to strike the testimony of Ms. Hunter and Ms. Butler? 3. Did the trial court err by imposing separate sentences for first-degree assault and reckless endangerment? 2  BACKGROUND The following account is based on the evidence adduced at Paul’s three-day jury trial, viewed in the light most favorable to the State. State v. Stone, 493 Md. 78, 96 (2026). Shaneita Hunter was in her apartment one afternoon in July 2022 when her boyfriend, Paul, called and said “that he was going to come mess [her] house up.” Hunter called her best friend, Aisha Butler, who went to Hunter’s apartment. Butler brought her two children, who were one and eight years old. Hunter, Butler, and the children then went out on a shopping trip. When they returned, the older child asked if he could play PlayStation in the living room. Hunter told him that he could and that “if anybody knocks on my door, please come tell me.” She then “locked [her] door.” Paul drove up in a silver car, walked up to Hunter’s apartment, and banged repeatedly on the door. Hunter spoke to him from the other side of the door while Butler called 9-1-1. Suddenly, Hunter “was trying to close back the door, but [she] couldn’t. He was just too strong, and he just used all his force and” broke the lock and forced his way inside.2 Hunter, Butler, and the children retreated into a bedroom. Paul demanded that Hunter return $300 he had given her as contribution toward the rent. While Hunter was sitting on her bed, Paul punched her in the face. Hunter fell to the floor, and when she got 2 Photographs depicting the damaged entrance door were admitted into evidence. 3 up, Paul “put his hands around [her] neck.” Butler tried to pull Paul’s hands from Hunter’s neck, but she couldn’t. Paul continued to strangle Hunter until Hunter “blanked out.” According to Butler, Paul “was strangling her. Like he was trying to kill her.” Meanwhile, the children were right there, “[s]tanding behind the bed.” When Paul finally let Hunter go, “she was not breathing. She was seizing. She was urinating on herself.” The older child was “crying.” When Hunter came to, Paul “was sitting in front of [her] closet just shaking.” When police responded, Hunter “was just begging for [her] life, … holding on … to the one police officer,” saying “please don’t leave me; he’s trying to kill me.” After Paul left,3 police (according to Hunter and Butler) told Hunter that she would have to obtain a domestic violence restraining order if she wanted police to arrest Paul, were he to return. Police told Hunter that “there [i]s nothing that we can do to help you because he’s saying one thing, you’re saying another. You gotta go get a stay-away order.”4 Hunter asked the responding police officer to leave. Hunter “declined medical attention that night,” but she went to the hospital two days later because she still had difficulty breathing.5 3 Hunter testified that police talked with Paul outside and they allowed Paul to leave. A police report filed by one of the responding officers, however, stated that when officers arrived, Paul had already “fled the scene in an unknown direction.” 4 During cross-examination, Hunter acknowledged that she told the police officer who responded initially that Paul “lives here” and “had a key.” 5 A photograph depicting the injury to her neck was taken at the hospital and was admitted into evidence at trial. Hunter told the jury, “you can see Mr. Paul’s fingerprints on my neck.” 4  The next week, Hunter filed an application for statement of charges against Paul.6 In April 2023, a six-count indictment was returned, charging Paul with home invasion, burglary in the third degree, assault in the first degree, assault in the second degree, reckless endangerment, and burglary in the fourth degree. Paul’s jury trial began in late April 2024. The State called three witnesses: Hunter, Butler, and Hunter’s uncle. The defense called two witnesses: Prince George’s County Police Officer Deibi Ramirez, who responded to the 9-1-1 call, and Paul. Paul denied that he assaulted Hunter but he confirmed that there were children in the apartment at the time Butler called 9-1-1. Although the State had notified Paul that it was seeking an enhanced sentence, the State did not request a jury instruction related to the enhancement, and the trial court did not direct the jury to consider whether Paul “kn[ew] or reasonably should [have known] that a minor who is at least 2 years old [wa]s present in [the] residence.” CR § 3-601.1(a)(1). The jury found Paul guilty of first- and second-degree assault, reckless endangerment, and fourth-degree burglary.7 The court sentenced Paul to twenty years’ imprisonment, with all but eight years suspended, for first-degree assault, adding five years’ imprisonment with all but three years suspended under CR § 3-601.1; a concurrent 6 Maryland allows citizens (not just police officers or prosecutors) to apply for criminal charges. According to judiciary data, in recent years, roughly 35% of all applications have been citizen applications. Dep’t of Leg. Svcs., Fiscal and Policy Note, HB 336 (revised March 30, 2026), available at https://perma.cc/6SAM-R9K9. 7 The jury acquitted him of home invasion and third-degree burglary. 5 term of five years’ imprisonment, with all but three years suspended, for reckless endangerment; and a concurrent term of one year for fourth-degree burglary.8 Paul noted this timely appeal. Additional facts are included where pertinent to the discussion of the issues. DISCUSSION I. Sentencing Enhancement Paul’s first contention on appeal is that the sentencing court violated his right to trial by jury when the judge, not the jury, decided that Paul violated an enhancement statute. That sentence, he argues, was imposed in violation of Apprendi v. New Jersey, 530 U.S. 266 (2000). To provide context for Paul’s arguments, we first review the enhancement statute, the Supreme Court’s decision in Apprendi, and Paul’s sentencing hearing. The Enhancement The key statute here, CR § 3-601.1, provides: (a) (1) A person may not commit a crime of violence as defined in § 5-101 of the Public Safety Article when the person knows or reasonably should know that a minor who is at least 2 years old is present in a residence. (2) For the purposes of paragraph (1) of this subsection, a minor is present if the minor is within sight or hearing of the crime of violence. The trial court merged second-degree assault into first-degree assault, and it further 8 imposed five years’ supervised probation and various conditions such as anger manage- ment counseling and drug and alcohol counseling. 6  (b) A person who violates this section is subject to imprisonment not exceeding 5 years in addition to any other sentence imposed for the crime of violence. (c) A court may impose an enhanced penalty under subsection (b) of this section if: (1) at least 30 days before trial in the circuit court, and 15 days before trial in the District Court, the State’s Attorney notifies the defendant in writing of the State’s intention to seek the enhanced penalty; and (2) the elements of subsection (a)(1) of this section have been proven beyond a reasonable doubt. (d) If the defendant is charged by indictment or criminal information, the State may include the notice required under subsection (c)(1) of this section in the indictment or information. (e) An enhanced penalty imposed under this section shall be separate from and consecutive to a sentence for any crime based on the act establishing the violation of this section. The Precedent In Apprendi, the Supreme Court of the United States considered a New Jersey hate- crime statute, which authorized judges to impose an enhanced sentence9 if, by a preponderance of the evidence, the defendant’s “purpose” had been “to intimidate” because of racial bias. 530 U.S. at 468-69. The Court held that this statute violated the defendant’s constitutional right to a jury trial. Id. at 491-97; U.S. Const. amend VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial 9 In that case, the statute permitted the trial court to impose an enhanced sentence “between 10 and 20 years” instead of the otherwise applicable range of “between five years and 10 years.” Apprendi, 530 U.S. at 468-69. 7 jury”). The Court declared: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”10 Apprendi, 530 U.S. at 490. Paul’s Sentencing Hearing When the court discussed setting a date for the sentencing hearing at the conclusion of trial, the State’s attorney highlighted that the State had filed a notice under CR § 3-601.1 that it would be seeking an additional five-year sentencing enhancement. At Paul’s sentencing hearing on August 30, 2024, the State’s attorney again reminded the court that she had “file[d] a notice of enhanced penalty under Section 3-601.1 of the Criminal Law Article[,]” and reminded the court of her earlier analysis: [STATE’S ATTORNEY]: … [W]e asked about Your Honor finding note or taking note that there was a minor and B, at the time, who was under the age of 10 and that the Defendant having been found guilty of crimes of violence in this case, that would include the first- and second-degree assault. That upon conviction of those, he would be susceptible to an enhanced penalty which is an additional five years added on to his sentence. And that since there was testimony at the trial, that there was the minor child who in fact is mentioned throughout the 9-1-1 call and throughout everything that 10 In federal prosecutions, such facts must also be alleged in the indictment. United States v. Cotton, 535 U.S. 625, 628-29 (2002) (citing Apprendi, 530 U.S. at 476). Because the Grand Jury Clause of the Fifth Amendment has never been held to apply to the states, Alexander v. Louisiana, 405 U.S. 625, 633 (1972), Cotton’s requirement that the facts supporting imposition of an enhanced sentence be included in an indictment does not apply to the states. Rather, such matters are governed by state constitutional, statutory, and common law. In Maryland, statutes, like CR § 3-601.1, typically require that the State give notice prior to trial of its intent to seek an enhanced sentence based on an additional element of an offense. See e.g. CR § 3-304(d) (requiring the State to “notify the person in writing of the State’s intention at least 30 days before trial” if it seeks an enhanced punishment for rape in the second degree where the perpetrator is at least 18 years of age and the victim is under the age of 13 years). 8  was presented and was present and a witness to those crimes of violence for which the Defendant was convicted. We would ask for that enhancement. The court imposed what it understood to be an enhanced sentence of five years, noting that it would “suspend all but 3 years of that,” and that the sentence would run consecutively to the other sentences. The court found, “for the record, that the State has met its burden with regard to section 3-601.1 of the Criminal Law Article.” The Parties’ Contentions Paul argues his sentence violates Apprendi because the trial court did not ask the jury to make factual findings necessary to support the enhancement. Consistent with Apprendi, CR § 3-601.1(c)(2) requires that the facts giving rise to the enhancement must be “proven beyond a reasonable doubt,” which Paul argues would require jury findings. Paul can raise this issue for the first time on appeal, he says, because under Parker v. State, 185 Md. App. 399, 414-15 (2009), it was not waived by his failure to object at trial and at sentencing. The State responds that even if there was an Apprendi error, any error was harmless. Citing Washington v. Recuenco, 548 U.S. 212 (2006), the State urges that “an Apprendi error is not structural error and therefore can be reviewed for harmless error.” Thus, the State argues, we can affirm because: (1) Paul was on notice that the State may seek an enhancement because of the presence of children during the charged offense; (2) the defense failed to “contest[] that argument or that evidence during trial; and (3) the State 9 presented “overwhelming evidence” that Paul committed his crimes in the presence of an eight-year-old child. In reply, Paul disputes the presence of “overwhelming evidence,” pointing out that the State relies heavily on Ms. Butler’s testimony, which was ambiguous about when her children were with her in the apartment. Analysis We hold that the enhanced sentence imposed by the trial court did not violate Apprendi, but it did violate CR § 3-601.1. In the wake of Apprendi, a slew of criminal defendants argued that because the facts underlying their sentencing enhancements were not found by a jury, their trial judges erred by imposing enhanced sentences. United States v. Behrman, 235 F.3d 1049, 1053 (7th Cir. 2000). But these arguments reflected a “misunderstanding.” Id. “What Apprendi holds is: ‘Other than the fact of a criminal conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” Id. (quoting Apprendi, 530 U.S. at 489). Under this test, a sentence can violate Apprendi only if the purportedly enhanced sentence exceeds the statutory maximum for an unenhanced sentence. Oken v. State, 378 Md. 179, 207 (2003) (“Apprendi applies only when a defendant receives a sentence in excess of the statutory maximum”). Here, the sentence imposed for first-degree assault does not exceed the statutory maximum. The statutory maximum for first-degree assault is 25 years. CR § 3-202(c). Paul’s relevant sentence is 25 years, calculated as 20 years for first-degree assault plus a 10 five-year enhancement. Indeed, because Paul’s other sentences run concurrently, Paul’s “aggregate … sentence is 25 years [with] all but 11 years suspended.” The sentencing court had the authority to impose an additional five years to the sentence without additional jury factfinding so long as the total sentence for first-degree assault, including the enhancement, did not exceed the statutory maximum for unenhanced first-degree assault. See Reiger v. State, 170 Md. App. 693, 697 (2006) (“The sentencing court has virtually boundless discretion in imposing a sentence.”) (quotation marks omitted). More precisely, the court would have been within its discretion to sentence Paul to 25 years in prison for first-degree assault, as that decision would be “based upon the facts and circumstance of the crime committed and the background of the defendant[,]” not “ill-will, prejudice or other impermissible considerations.” Jackson v. State, 364 Md. 192, 199-200 (2001) (quoting Poe v. State, 341 Md. 523, 532 (1996) and Gary v. State, 341 Md. 513, 516 (1996)). Thus, imposing a 25-year sentence (20 years for first-degree assault plus 5 years for the enhancement) was not an Apprendi error. Even though Paul focuses his argument on Apprendi, we construe Paul as also arguing that CR § 3-601.1 itself, not just Apprendi, required that the facts underlying his enhancement be submitted to a jury. On this issue, we agree with Paul.11 11 We ordinarily would not reach Paul’s Apprendi argument anchored in the Sixth Amendment when the case can be resolved on statutory grounds. See VNA Hospice of Maryland v. Dep’t of Health & Mental Hygiene, 406 Md. 584, 604 (2008) (describing the “established policy is to decide constitutional issues only when necessary”). Addressing the constitutional claim was necessary here, even though it was not dispositive, for two (continued) 11  Read in context, CR § 3-601.1 requires that its facts be proven to the finder of fact at trial (here, the jury), not to the sentencing judge.12 Subsection (c)(2) requires that the key facts (“the person knows or reasonably should know that a minor who is at least 2 years old is present in a residence”) be “proven beyond a reasonable doubt.” CR § 3-601.1(c)(2). This alone does not require factfinding at trial, because sentencing judges sometimes find facts beyond a reasonable doubt. See Bryant v. State, 436 Md. 653 (2014) (judges considering sentencing enhancements may find prior convictions beyond a reasonable doubt). But every contextual clue in the statute suggests that the requisite factfinding should happen at trial rather than at sentencing: • before trial, the State must notify the defendant that it will seek the enhancement, CR § 3-601.1(c)(1), presumably so that the defendant can mount a defense at trial; • the reasonable-doubt requirement, CR § 3-601.1(c)(2), matches the findings that must be made at trial for every other element of every other offense;13 and reasons. First, the parties’ briefs focused almost exclusively on Apprendi yet misunderstood its holding, suggesting that our resolution of the issue would provide significant guidance going forward. Second, our discussion of Apprendi provides useful context for our discussion of the statute and its history. 12 Although we are not bound by an earlier unreported opinion, we note that our Court has reached this result before. Pumphrey v. State, No. 1482, Sept. Term, 2021, 2023 WL 3051279, at *7 (App. Ct. Md. Apr. 24, 2023) (unreported) (“the court may impose the penalty in § 3-601.1 if the State timely files the requisite notice and proves to the finder of fact that a crime of violence was committed in the presence of a minor in a residence” (emphasis added)). 13 Judges are called upon to find facts beyond a reasonable doubt at sentencing only in rare cases. Cf. Bowman v. State, 314 Md. 725 (1989) (requiring a sentencing judge to find repeat-offender predicates beyond a reasonable doubt). 12  • the penalty imposed after trial is “separate from and consecutive to a sentence for any crime based on the act establishing a violation of this section,” CR § 3-601.1(e), not merely an extension of the sentence for the underlying offense, suggesting that the enhancement is akin to a separate charge to be proven at trial. These step-by-step procedural provisions place the key factfinding at the time of trial, applying the same evidentiary burden as other criminal offenses (beyond a reasonable doubt). That makes sense—the statute was enacted after Apprendi. Testimony presented to the General Assembly about CR § 3-601.1 was consistent with this understanding. The Maryland State Bar Association (MSBA) wrote that under “Blakely v. Washington, 542 U.S. 296 (2004), a jury, not a judge, must find these facts to be true beyond a reasonable doubt if the defendant has elected a trial by jury.”14 Leg. Bill File at 58, HB0306, Reg. Sess. (2014). And opposing the bill, the Office of the Public Defender (OPD) explained that the bill appeared to “direct the fact-finder” to make the statutory determinations based on “circumstantial evidence.” Leg. Bill File at 58, SB0337, Reg. Sess. (2014).15 Although these letters can be a poor source of legislative intent, the 14 In Blakely, the Supreme Court held that even when a defendant pleads guilty to a charge, if the defendant does not admit to facts underlying sentencing enhancements, then a judge may not impose a sentence exceeding the underlying statutory maximum without first trying the facts related to the enhancement before a jury. 542 U.S. at 305. When citing Blakely, the MSBA did not distinguish between cases that exceed the underlying statutory maximum (like Apprendi and Blakely) and those that do not. 15 Section 3-601.1 was enacted when the Governor of Maryland signed two identical bills that had been cross-filed during the 2014 legislative session: HB 306 and SB 337. 2014 Md. Laws chs. 115, 116. In his separate opinion in Wheeling v. Selene Fin., former Chief Judge Joseph Getty explained what happens in such circumstances: (continued) 13 General Assembly amended the bill to address concerns in MSBA’s and OPD’s letters, suggesting that legislators were aware of their analysis. Id. at 73 (striking “otherwise able to perceive the crime,” which OPD argued was too vague), 89 (striking “domestically related,” which MSBA and OPD argued was vague or imprecise). We conclude that CR § 3-601.1, read as a whole and considering the circumstances surrounding its enactment, requires that its predicate elements be found beyond a reasonable doubt by the trier of fact at trial. Unlike Apprendi, this requirement applies even where the enhanced sentence does not exceed the prescribed statutory maximum for the underlying crime. Here, the jury never made such a finding, and it was never asked to. It follows that the sentencing judge here was not authorized by the statute to add a separate, consecutive five-year sentence. Put another way, the court “lacked the power or authority to impose” this separate sentence. Johnson v. State, 427 Md. 356, 370 (2012). When two bills are cross-filed in the General Assembly and both pass in the House of Delegates and the Senate, the Governor has the choice to sign only one bill or both. Traditionally, it has been good legislative practice to only sign one bill. This is done for several reasons, such as to not clutter the chapter laws with redundancy, to preserve resources of staff time and printing (the printed Laws of Maryland for each legislative session would be almost double in size, print, and paper due to the large number of cross-filed bills), and to avoid legal confusion if, during the bill drafting and amendment process, the two bills end up being not truly identical word-for-word. The only reason to sign both involves the pride of the primary sponsors who each want the benefit of having the Governor sign their bill. When both cross- filed bills are signed by the Governor in succession, the first bill is super- seded by the second bill. 473 Md. 356, 405 n.2 (2021). 14 Thus, even though the sentencing judge could have sentenced Paul to 25 years for first- degree assault for all the same reasons, the sentencing judge could not sentence Paul to 20 years for first-degree assault and a consecutive five years under CR § 3-601.1. We cannot know whether the sentencing judge would have imposed 25 years just for first-degree assault, so we exercise our discretion under Twigg v. State, 447 Md. 1, 27-30 & n.14 (2016), to vacate the sentences imposed on all counts, thereby providing the circuit court with “maximum flexibility on remand to fashion a proper sentence,” so long as the sentences do not exceed the original aggregate sentence of 25 years. Id. at 29. II. Discovery Sanctions Additional Background At trial, it became evident that Hunter and Butler had given written statements to police officers on the night in question.16 Because those statements were not provided to the State, however, they were not produced in discovery. Paul argues that because these written statements were not produced, Hunter and Butler should not have been allowed to testify at trial. Paul’s trial counsel inferred the existence of these statements from other evidence 16 provided in discovery: police body-worn camera videos depicting Ms. Hunter and Ms. Butler, appearing to write statements while they were being recorded; and a subsequent statement Ms. Hunter gave to Prince George’s County Police Detective Jane Formento, which referred to written statements made on the night of the crimes. 15  Paul’s counsel first raised this issue with prosecutors on the Friday evening before a Monday trial. Over the weekend, the State’s attorney “reach[ed] out to [the] lead detective,” who responded “on Sunday … that she did not have any other additional statements.” In response to the court’s order before voir dire, the State’s attorney “had members of [her] office do additional investigating.” The State’s “victim witness coordinator spoke” with Butler, who recalled including “badge numbers” in these writings “because they were upset with the way that it was handled.” Based on this new information that these were probably letters of complaint, the State contacted the Public Integrity Unit, which then found the supervisor for the responding officer. Unfortunately, the supervisor “did not recall any complaints from this case,” but he offered that any complaints “would have been forwarded to” the Internal Affairs division. So the State pulled Internal Affairs reports for the responding officers, but none of them corresponded to the relevant incident. Separately, a paralegal for the State’s Attorney’s Office subpoenaed the police station for any potentially relevant records, receiving none. Both the State’s attorney and the lead detective got complete copies of the case file and confirmed that there were no written statements from Hunter or Butler on the day in question. On Monday morning, just before voir dire, Paul’s counsel argued that the State had improperly withheld evidence under Rule 4-263: These written statements constitute, arguably, some of the best evidence possible in this matter. It is the two absolutely critical witnesses. I don’t have them. We are entitled to them, and I do not believe it accords with due process to force Mr. Paul to proceed without having had these statements or that I have a full and fair opportunity to cross examine these witnesses. 16 The trial court understood that this was a motion to exclude the testimony of Hunter and Butler. The State’s attorney replied that Hunter and Butler appeared not to be writing statements for the police; they were writing complaints about the police officers who refused to arrest Paul: “the Defendant was able to leave the scene” and “Ms. Butler and Ms. Hunter were both very upset about that.” Even so, the court ordered the prosecutor to investigate the matter further and try to produce whatever Hunter and Butler had written: I am going to direct you to inquire and find out where those statements, if they were taken down. Whether they were complaints, the police department should have them in their possession. And to the extent that they could contain information or statements pertaining to the actual incident, I do think [trial counsel] should have an opportunity to have that. The court then turned its attention to voir dire. The next morning, the court asked the State’s attorney to describe her efforts to locate the missing statements. She had “been unable to locate them.” At the court’s request, she recounted having learned of the issue Friday evening and having worked all weekend to find the statements. After hearing arguments, the court found that the State had done its “due diligence” to locate the documents, and that there was no evidence from which one could argue the State was acting in bad faith. The court denied Paul’s motion and permitted Hunter and Butler to testify. During cross-examination, Hunter and Butler confirmed that they had given written statements to police officers on the day of the crimes. Officer Ramirez, who responded to the crime scene, also testified that Hunter and Butler had made written statements and had given them to him. Officer Ramirez did not recall what he did with those statements but 17 testified that, according to protocol, they would be given “to the investigators” or to a supervisor, who then would “send it to the case folder and send it to the investigators.” At Paul’s request, the court gave the jury an instruction on missing evidence, derived from Cost v. State, 417 Md. 360 (2010), and Patterson v. State, 356 Md. 677 (1999). Defending its decision to allow the testimony, the court noted that Paul’s counsel had ample opportunity to cross-examine Hunter and Butler with other similar impeachment evidence. On appeal, Paul reasserts his argument that the court should have precluded Hunter’s and Butler’s testimony. Analysis Rule 4-263(d)(3)(C) requires that the State, “[w]ithout the necessity of a request,” provide to the defense “all written statements” of “each State’s witness the State’s Attorney intends to call to prove the State’s case in chief” that “relate to the offense charged[.]” Part (n) of the Rule provides: If at any time during the proceedings the court finds that a party has failed to comply with this Rule or an order issued pursuant to this Rule, the court may order that party to permit the discovery of the matters not previously disclosed, strike any or all testimony to which the undisclosed matter relates, grant a reasonable continuance, prohibit the party from introducing in evidence the matter not disclosed, grant a mistrial, or enter any other order appropriate under the circumstances. The failure of a party to comply with a discovery obligation in this Rule does not automatically disqualify a witness from testifying. If a motion is filed to disqualify the witness’s testimony, disqualification is within the discretion of the court. This rule, “on its face, does not require the court to take any action; it merely authorizes the court to act.” Thomas v. State, 397 Md. 557, 570 (2007). Trial courts have “the 18 discretion to select an appropriate sanction [and] the discretion to decide whether any sanction is … necessary.” Id. When deciding what, if any, sanction to impose, trial courts should consider: “(1) the reasons why the disclosure was not made; (2) the existence and amount of any prejudice to the opposing party; (3) the feasibility of curing any prejudice with a continuance; and (4) any other relevant circumstances.” Id. at 570-71. Generally, trial courts “should impose the least severe sanction that is consistent with the purpose of the discovery rules.” Id. at 571. “[E]xclusion of evidence should be ordered only in extreme cases.” Id. at 573. On this record, nobody knows what happened to Hunter’s and Butler’s statements. The trial court found that the State’s attorney exercised appropriate diligence to find them. This finding was not clearly erroneous, because it is adequately supported by the State’s attorney’s detailed testimony about her efforts. For the same reason, the trial court’s finding that the State had not acted in bad faith was supported by substantial evidence.17 The trial court carefully considered the appropriate remedy for what it found to be a good-faith record-keeping error. A continuance of the proceedings would not help, because based on the investigation the State had already done, the letters were not likely to be found. Under these circumstances, we find the trial cour