Williams v. State

RAKER, Judge,

dissenting, in which HARRELL and BATTAGLIA, JJ., join:

I respectfully dissent from the judgment of the Court granting appellant a new trial based on this record. The majority creates a rule that is overbroad and unsupported by *119any authority. Before a new trial should be ordered and the State in a criminal case, or the prevailing party in a civil case, is denied the benefit of a conviction or a favorable verdict and is required to bear the expense and the time of a new trial based on juror non-disclosure during voir dire, the trial court should, at a minimum, hold an evidentiary hearing affording counsel the opportunity to inquire as to the facts surrounding the non-disclosure. The court should then make a finding as to whether the conduct was intentional or inadvertent, and whether any party was prejudiced. Accordingly, I would remand this matter for an evidentiary hearing to permit the trial court to determine whether the juror non-disclosure in this case was intentional, and if it was, whether there was any prejudice to appellant. See, e.g., McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) (reversing United States Court of Appeals for the Tenth Circuit granting motion for new trial and remanding to permit party to demonstrate that juror failed to answer honestly a material question on voir dire and that a correct response would have provided valid basis for challenge for cause).

I.

The majority holds “that, where there is a non-disclosure by a juror of information that a voir dire question seeks and the record does not reveal whether the non-disclosure was intentional or inadvertent, the defendant is entitled to a new trial.” Maj. op. 394 Md. at 114, 904 A.2d at 543-44. The majority is too quick to grant a new trial.

I would adopt the test articulated by the United States Supreme Court in McDonough, a products liability action. In that case, the Supreme Court outlined a procedure to be followed when a juror has failed to honestly answer questions posed on voir dire. See McDonough, 464 U.S. at 556, 104 S.Ct. at 850. Many courts in the country have adopted the McDonough test, not only in civil cases but also in criminal cases. See, e.g., Grover v. Minette-Mills, Inc., 638 A.2d 712, 715 (Me.1994); State v. Tolman, 121 Idaho 899, 828 P.2d 1304, *1201307 (1992); In re Nash, 158 Vt. 458, 614 A.2d 367, 371 (1991); Isaacs v. State, 259 Ga. 717, 386 S.E.2d 316, 335 (1989); State v. Rempel, 53 Wash.App. 799, 770 P.2d 1058, 1060-61 (1989), rev’d on other grounds, 114 Wash.2d 77, 785 P.2d 1134 (1990); Catchings v. City of Glendale, 154 Ariz. 420, 743 P.2d 400, 402 (Ct.App.1987). See generally Robert G. Loewy, When Jurors Lie: Differing Standards for New Trials, 22 Am. J. Crim. L. 733, 757-58 (1995).

As the Supreme Court observed in McDonough, trials are expensive and a new trial should not be granted lightly. See McDonough, 464 U.S. at 553, 104 S.Ct. at 848. Petitioner in that case alleged that a juror did not disclose information about injuries previously sustained by his son when a tire exploded. Id. at 550-51, 104 S.Ct. at 847. The McDonough court held “that to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” Id. at 556, 104 S.Ct. at 850. Writing in a plurality opinion, Chief Justice Rehnquist stated as follows:

“This Court has long held that ‘ “[a litigant] is entitled to a fair trial but not a perfect one,” for there are no perfect trials.’ Trials are costly, not only for the parties, but also for the jurors performing their civic duty and for society which pays the judges and support personnel who manage the trials. It seems doubtful that our judicial system would have the resources to provide litigants with perfect trials, were they possible, and still keep abreast of its constantly increasing caseload. Even this straightforward products liability suit extended over a 3-week period.
“We have also come a long way from the time when all trial error was presumed prejudicial and reviewing courts were considered ‘citadels of technicality.’ The harmless-error rules adopted by this Court and Congress embody the principle that courts should exercise judgment in preference to the automatic reversal for ‘error’ and ignore errors that do not affect the essential fairness of the trial. For exam-*121pie, the general rule governing motions for a new trial in the district courts is contained in Federal Rule of Civil Procedure 61, which provides:
‘No error ... or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict ... unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.’ ”

Id. at 558,104 S.Ct. at 848-49 (citations omitted).

The majority states that rulings in other jurisdictions mirror the holding that it announces today. See maj. op. 394 Md. at 115-16, 904 A.2d at 544-45. The cases relied upon by the majority do not support the majority’s broad holding. Those cases are all distinguishable in two significant ways.

First, with the exception of one case, State v. Thompson, 142 N.J.Super. 274, 361 A.2d 104 (App.Div.1976), in all the cases relied upon by the majority, the trial court either held an evidentiary hearing or received affidavits from the juror in question, thereby enabling the trial court to make a finding as to whether the non-disclosure was intentional or inadvertent. Second, and of great significance, is that in every case relied upon by the majority, the prevailing rule in the jurisdiction is that voir dire serves not only to ferret out bias and challenges for cause, but also provides information to counsel for the intelligent exercise of peremptory challenges, which is not the rule in Maryland.

The scope of voir dire in Maryland is very limited. We have said time and time again that the sole purpose of voir dire in Maryland is “to expose ‘the existence of cause for disqualification ... it does not encompass asking questions designed to elicit information in aid of deciding on peremptory challenges.’ ” London v. Zorn, 389 Md. 206, 216, 884 A.2d 142, 147 (2005) (quoting Couser v. State, 282 Md. 125, 138-39, 383 A.2d 389, 397 (1978)). This distinction affects the analysis *122because the Maryland approach lessens the potential prejudice that may result from juror non-disclosure in response to a voir dire question. Furthermore, this feature of Maryland law makes it easier for the trial court to determine post-trial whether a party has been prejudiced by a juror non-disclosure because the trial court, in making this determination, is not forced to make findings with respect to whether a nondisclosure would have resulted in the exercise of a peremptory strike and, if so, whether the loss of the opportunity to exercise the peremptory strike would have had a prejudicial impact on the party.

Careful examination of the cases from other jurisdictions relied upon by the majority confirms these conclusions. For instance, in California, voir dire provides the basis for a challenge for cause or the exercise of peremptory challenges. Therefore, the standard and the analysis is not relevant in Maryland. The majority quotes People v. Blackwell, 191 Cal.App.3d 925, 236 Cal.Rptr. 803 (1987) for the proposition that intentional concealment of relevant facts constitutes misconduct, raising a rebuttable presumption of prejudice, and thereby constitutes grounds for a new trial. See maj. op. 394 Md. at 116, 904 A.2d at 545. The majority’s selective quotes do not tell the entire story. The California court set out the following test: *123Blackwell, 236 Cal.Rptr. at 806 (citations and internal quotations omitted). In Blackwell, the court had before it an affidavit from the juror, revealing the juror’s bias. Id. at 805. The content of the affidavit met the criteria for an inference of prejudice, and that the defense would have asserted a peremptory challenge to eliminate this juror from the panel even if the misconduct would not permit a challenge for cause. Id. at 806. Blackwell does not support the majority’s holding that mere non-disclosure, without more, mandates a new trial.

*122“When a prospective juror in a criminal case fails to respond to a relevant, direct and unambiguous question during voir dire, the trial court, when hearing a motion for new trial, should determine whether the question propounded to the juror was (1) relevant to the voir dire examination; (2) whether it was unambiguous; and (3) whether the juror had substantial knowledge of the information sought to be elicited. If the trial court’s determination of these inquiries is in the affirmative, the court should then determine if prejudice to the defendant in selecting the jury reasonably could be inferred from the juror’s failure to respond. If prejudice reasonably could be inferred, then a new trial should be ordered.”

*123In South Carolina, the law with respect to voir dire is that “[wjhen a juror conceals information inquired into during voir dire, a new trial is required only when the court finds the juror intentionally concealed the information, and that the information concealed would have supported a challenge for cause or would have been a material factor in the use of the party’s peremptory challenges.” State v. Woods, 345 S.C. 583, 550 S.E.2d 282, 284 (2001). Following an evidentiary hearing, the court found intentional concealment and prejudice because the information concealed would have been a material factor in the use of the party’s peremptory challenges. Id. at 285. Woods cannot support the majority’s holding.

In Missouri, the purpose of voir dire is to enable a defendant to exercise the right to challenge a juror for cause or to exercise peremptory challenges. State v. Martin, 755 S.W.2d 337, 339 (Mo.Ct.App.1988). The same is true for Tennessee, Arizona, New Jersey and Alabama, states relied upon by the majority. In all these jurisdictions, voir dire is permissible for the intelligent exercise of peremptory challenges as well as for cause.

In Doyle v. Kennedy Heating & Service, Inc., 33 S.W.3d 199, 200 (Mo.Ct.App.2000), before the court granted a new trial based on juror non-disclosure, the court held an evidentiary hearing and found the juror conduct to be intentional. In State v. Akins, 867 S.W.2d 350, 354-58 (Tenn.Crim.App. 1993), the court held a hearing, the juror testified, and the non-disclosure was determined to be intentional. In Board of Trustees Eloy Elementary School District v. McEwen, 6 *124Ariz.App. 148, 430 P.2d 727, 728-29 (1967), the court had the juror’s deposition and made a determination that the nondisclosure was intentional. In Hayes v. Boykin, 271 Ala. 588, 126 So.2d 91 (1960), where the trial court found, after a hearing, that the juror knew he was obligated to answer a voir dire question and did not do so, the Alabama Supreme Court, in upholding the trial court’s grant of a new trial, concluded that had the juror responded to the question, his response would have revealed the information to counsel and counsel “could have exercised advisedly his peremptory challenges, and thus availed himself of one of the manifest purposes of [the Alabama Code].” Id. at 91-94. In Jackson v. United States, 395 F.2d 615, 616-17 (D.C.Cir.1968), a case characterized by the court as one with bizarre facts, again, the trial court first held a hearing to flesh out the facts surrounding the juror’s non-disclosure of significant information before deciding whether to grant a new trial.

In State v. Thompson, 142 N.J.Super. 274, 361 A.2d 104, 108 (App.Div.1976), the appellate division ordered a new trial on the grounds that a juror did not disclose his employment as a state prison guard. Although the trial court did not hold an evidentiary hearing and there was no finding of intentional non-disclosure, the court awarded a new trial because the court reasoned that “[t]he key determinant is whether defendant has been deprived of a fair trial by jury by virtue of his inability to exercise a peremptory challenge because of the failure of the juror to make a candid response to the inquiry relating to a significant fact of potential bias.” Id. at 107. Thus, the Thompson court’s holding was premised on the ability of the defendant to use voir dire as a basis for the exercise of peremptory challenges, which is clearly not the law in Maryland. Consequently, Thompson lends no support to the majority’s holding.

II.

This case fits well within the Maryland rule permitting and providing for a limited remand. Maryland Rule 8-604(d) provides in pertinent part as follows: *125“(d) Remand. (1) Generally. If the Court concludes that the substantial merits of a case will not be determined by affirming, reversing or modifying the judgment, or that justice will be served by permitting further proceedings, the Court may remand the case to a lower court. In the order remanding a case, the appellate court shall state the purpose for the remand. The order of remand and the opinion upon which the order is based are conclusive as to the points decided. Upon remand, the lower court shall conduct any further proceedings necessary to determine the action in accordance with the opinion and order of the appellate court.”

We noted in Southern v. State, 371 Md. 93, 807 A.2d 13 (2002), that a limited remand is proper “in various circumstances, particularly when the purposes of justice will be advanced by permitting further proceedings.” Id. at 104-05, 807 A.2d at 19-20 (collecting cases). In Lipinski v. State, 333 Md. 582, 636 A.2d 994 (1994), we explained that although limited remand is not an appropriate disposition in a criminal case when the error at issue occurred during the trial itself, it is appropriate if the error occurred during a proceeding collateral to the trial itself, and the remand is for the limited purpose of correcting the error that occurred during the collateral proceeding. Id. at 591-92, 636 A.2d at 998-99. The error in this case occurred during a collateral proceeding which took place after trial, when the trial judge failed to make the appropriate factual inquiry in response to appellant’s motion for a new trial. Furthermore, for reasons discussed supra, limited remand would further the interests of justice in this case. Limited remand is the appropriate disposition of the voir dire issue.

In addition, proceeding in this fashion is consistent with the United States Supreme Court approach to Sixth Amendment violations and the approaches of other courts in the country. Most other courts in the country have remanded cases for evidentiary hearings when presented with similar issues. See, e.g., Smith v. Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 945, 71 L.Ed.2d 78 (1982) (noting that “[t]his Court has long held that *126the remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias”). When the record is deficient to show whether the juror non-disclosure was intentional or inadvertent, most courts have proceeded in this fashion. See, e.g., State v. Thomas, 777 P.2d 445 (Utah 1989).

Accordingly, I would adopt the McDonough test and remand this case for an evidentiary hearing to see if both prongs of the test have been met.

III.

Appellant also argued before this Court that the trial court erred in not granting a new trial by failing to disclose that a police detective who testified for the State had been subject to an Internal Affairs disciplinary proceeding related to his handling of narcotics seized from suspects but unrelated to the case at hand. Before this Court he relies on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Maryland Rule 4-263(a). I would affirm the judgment of the trial court and would hold that appellant failed to preserve for appellate review his claim for a new trial based upon Brady because he failed to raise it in his motion for a new trial. As to the State’s obligation under the Maryland Rules, I would find that the trial court was correct in concluding that the State had no obligation under Rule 4-263(a) to disclose the detective’s Internal Affairs records.

A.

Appellant was charged with various violations of the Controlled Dangerous Substances Act, including distribution of cocaine and possession of heroin with intent to distribute. Appellant proceeded to trial along with a co-defendant, Jones. A jury convicted appellant on all counts with the exceptions of distribution of cocaine and the attempted distribution counts and he was sentenced to term of incarceration on the several convictions.

*127At trial, the State called as witnesses five police officers and three forensics experts. Two of the officers, Detectives White and Valencia, testified that while working undercover they attempted to purchase narcotics from appellant and Jones. They further testified that, after giving a marked twenty dollar bill to Jones, they were first shown two gelatin caps containing a white powdery substance which they believed to be heroin; they then told Jones that they wanted “coke,” whereupon Jones, after conferring with appellant, eventually returned with two vials containing a rock-like substance and gave the vials to Detective Valencia.

The other officers, Detective Turner and Officers Smith and Fields, were part of the arrest team awaiting nearby to arrest suspects upon the direction of White and Valencia. Detective Turner testified that he arrested appellant after receiving his description from Valencia. He further testified that he searched him incident to this arrest and discovered one vial of cocaine and seven gelatin caps containing heroin on his person, and later gave these items to Officer Smith to submit to the police department Evidence Control Unit (ECU). Officer Smith testified that she received these items from Turner, but did not see him seize them from appellant when he arrested and searched him. Officer Fields testified that he was involved in the arrest of Jones at the direction of Valencia, and that he observed Jones being searched by another officer and the discovery of a glass smoking pipe incident to this search. The State’s three other witnesses were all stipulated to be experts in forensic chemistry and testified that the items of evidence recovered from the searches of appellant and Jones and the gelatin caps given to Valencia by Jones all tested positive for the presence of cocaine or heroin.

Appellant and Jones moved for a new trial. The trial court held hearings on both motions, hearing Jones’s motion before appellant’s motion. In addition to moving for a new trial on grounds of non-disclosure of the juror’s relationship with an employee of the State’s Attorney’s Office, Jones moved for a new trial on the ground that the State failed to disclose that Turner had been subject to disciplinary actions by the Balti*128more City Police Department on two separate occasions and had a third disciplinary matter pending at the time. Before the trial court ruled on Jones’s motion, he withdrew the motion in accordance with an agreement reached with the State that in exchange it would recommend the minimum sentence provided for by the sentencing guidelines and permit Jones to raise on appeal the issues raised in the motion. Jones’s counsel stated on the record the basis for his motion, asserting as follows:

“The second issue for appeal would be that one of the State’s witnesses was Darryl Turner. Again, we were not aware that Darryl Turner in fact had some disciplinary action taken against him by the Baltimore City Police Department. I have a copy of a letter dated March 25, 2002 from the Baltimore City Police Department. That Detective Turner has a 1997 sustained conviction for misconduct. It was alleged that he had threatened a suspect by stating if he were to come to court he would deal with him in his own way. A 1995 sustained charge of misconduct and neglect of duty where the complaint was that the officer would seize drugs and not submit them to evidence, to evidence control. And there’s an open charge from 2002 claiming that he failed to submit $470.00 to ECU. At least two of those disciplinary actions I think would have been impeachable.... And again, we were not aware of this until after the trial was over with.”

The trial court, although not obligated to rule on the motion because it had been withdrawn, nonetheless commented on this ground as follows:

“Well, there’s no duty for the State to disclose [Turner’s disciplinary records] because they’re not exculpatory to the incident itself and the only way that the defense gets access to them is by subpoenaing IID records. There’s nothing in 4-263 that would require the State to disclose them.”

Approximately two months later, the trial court held a hearing on appellant’s motion for a new trial. In his motion, appellant argued he should be granted a new trial because, *129among other reasons, “disclosure by the State after the trial indicates that Officer Darryl Turner had pending theft charges that could have been used for impeachment.” At the hearing on his motion for a new trial, appellant argued for a new trial on the two grounds Jones relied upon, and also on the ground that he was tried improperly in absentia.1 Appellant’s counsel advised the trial court that he “had the benefit of hearing the Motion on the co-defendant [Jones] which was heard and denied....”2 He then indicated his intention to rely on the arguments of Jones’s counsel on the issue of the State’s failure to disclose Turner’s disciplinary record in advance of trial, stating that this issue had “been heard and ... I will adopt the arguments raised by previous counsel.”

After hearing additional argument from appellant’s counsel and ruling on the voir dire issue, the trial court denied appellant’s motion for a new trial and explained its rejection of his argument based on the State’s non-disclosure of Turner’s disciplinary record as follows:

“That wasn’t information that had to be disclosed by the State under Rule 4-268. The fact that he might have had an Internal Affairs problem on another occasion wasn’t exculpatory to this Defendant’s guilt. The proper way to obtain that information, as has been done hundreds of other times, is for the defense to find out about it, issue a subpoena for those records and impeach him with those records.”

B.

Appellant’s Brady argument that the trial court erred in denying his motion for a new trial is not properly before this Court. The record reveals that appellant never raised Brady *130in his motion before the trial court. Under Rule 8-131(a), this Court “[o]rdinarily ... will not decide [an] issue unless it plainly appears by the record to have been raised in or decided by the trial court.” Although Rule 8-131(a) does give the Court limited discretion to address an issue not raised below, I find it inappropriate to exercise that discretion in this case. See Abeokuto v. State, 391 Md. 289, 328, 893 A.2d 1018, 1042 (2006) (stating that ineffective assistance of counsel claim more properly raised in post-conviction proceeding because, ordinarily, the trial record does not illuminate the basis for the challenged acts or omissions of counsel). Cf. Keeter v. State, 175 S.W.3d 756 (Tex.Crim.App.2005) (holding that because defendant never mentioned Brady in motion for new trial, appellate court would not consider the issue).

In appellant’s motion for a new trial, he made no reference to Brady, and at argument before the trial court, he relied exclusively on the arguments previously raised in Jones’s motion for a new trial. Jones never argued that the State had a duty under Brady to disclose this information. As appellant relied exclusively on Jones’s arguments, he also failed to raise Brady before the trial court. Moreover, the trial court did not understand either Jones or appellant to have raised a Brady issue. Although Jones withdrew his motion for a new trial before the court ruled on it, the court said that the motion was meritless because “[t]here’s nothing in [Rule] 4-263 that would require the State to disclose them.” The trial court did not mention Brady, let alone attempt to explain why the State would not have an obligation under Brady to disclose this information.

In addition, the unpreserved Brady issue is inappropriate for review because the matter requires additional factual development. Ordinarily, appellate courts should not exercise their discretion to consider issues not raised below when the issue raised for the first time on appeal requires additional factual development. See, e.g., Jones v. State, 379 Md. 704, 714, 843 A.2d 778, 784 (2004); Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 725 (8th Cir.2002). Given the record in the present case, it would be inappropriate to pass upon appel*131lant’s Brady issue. To establish a Brady violation, a defendant must show that the evidence at issue (1) is favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) was suppressed by the State, either willfully or inadvertently; and (3) is material. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999); Wilson v. State, 363 Md. 333, 345-46, 768 A.2d 675, 681-82 (2001).

Since Brady was not raised in or decided by the trial court, the record before the Court does not permit a determination as to whether any of the necessary elements of a Brady claim are established in the present case. Although Jones’s counsel claimed before the trial court that Turner’s disciplinary record was detailed in a letter he received from the Baltimore City Police Department, the record does not contain that letter or anything else detailing the disciplinary proceedings concerning Turner. Given this gap in the record, this Court could not determine whether Turner’s disciplinary record would be favorable to appellant, and, if so, whether it would be sufficiently favorable to meet the Brady materiality test.

Second, the record is unclear as to when appellant actually possessed the information concerning Turner’s disciplinary record. There is a factual conflict in this record as to when appellant learned of this information. In Jones’s motion for a new trial, he indicated that his counsel was “unaware of the ongoing investigation of Detective Turner” during trial, and was only advised of the investigation by the prosecution after trial. At the hearing on Jones’s motion for a new trial, his counsel informed the court that the issue concerning Turner’s disciplinary record had not been raised at trial “because information on ... [that] issue[ ] came to us after the trial was over.” This colloquy suggests that Jones’s counsel was not in possession of information regarding Turner’s disciplinary record until sometime after April 2, 2003, the date the trial concluded. Nonetheless, he also informed the court during the hearing that he subpoenaed Turner’s records before the beginning of his trial and that “the subpoena was responded to by the Police Department on March the 25[th], which was the *132same day we started trial.” (Emphasis added). Jones’s counsel then stated that “this material [i.e., Turner’s disciplinary record] came at least a day or two subsequently to our trial beginning.” (Emphasis added). These statements suggest that Jones’s counsel had the information regarding Turner’s disciplinary record on or near March 25, 2003, prior to Turner’s testimony at trial on April 1, 2003. The record, furthermore, fails to disclose when Jones’s counsel shared this information with appellant’s counsel. The record, therefore, is inadequate to determine reliably whether the suppression element of the Brady test is satisfied because it is unclear when appellant actually possessed the information concerning Turner’s disciplinary record.

C.

The remaining issue before this Court is the scope of the obligation of the prosecutor to disclose information to the defense without a request under the Maryland Rules. The issue, therefore, is not due process but discovery under the Maryland Rules. The trial court concluded that under Rule 4-263, the fact that the officer might have had an Internal Affairs “problem on another occasion wasn’t exculpatory to this Defendant’s guilt.” The trial judge also said that the proper way to get that information was for the defendant to find out about the information and to issue a subpoena for the records.3

Rule 4-263(a) states, in pertinent part, as follows:

“(a) Disclosure Without Request. Without the necessity of a request, the State’s Attorney shall furnish to the defendant:
*133(1) Any material or information tending to negate or mitigate the guilt or punishment of the defendant as to the offense charged.”

The question in this case is whether Internal Affairs records of a police officer, gathered in a matter unrelated to the charge at hand, must be disclosed to the defense without a request by defense counsel.

Rule 4 — 263(g) states as follows:

“(g) Obligations of State’s Attorney. The obligations of the State’s Attorney under this Rule extend to material and information in the possession or control 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.”

Appellant argues that Williams v. State, 152 Md.App. 200, 831 A.2d 501 (2003) “should dictate the outcome in the instant case.” He is wrong. First, this Court granted certiorari in Williams, and in State v. Williams, 392 Md. 194, 896 A.2d 973 (2006), affirmed the Court of Special Appeals. In State v. Williams, this Court held that, for Brady purposes, the knowledge of evidence held by one prosecutor will be imputed to another prosecutor within the same office. Id. at 211, 896 A.2d at 983. We noted that the policy basis for our holding “will, potentially, avoid problems of intentional shielding of information and the existence of artificially created circumstances in which prosecutors can ‘plausibly deny’ having had access to any exculpatory evidence.” Id. at 222, 896 A.2d at 989. This case does not deal with members of the State’s Attorney’s Office. Rather, this case concerns information within the confidential police department personnel files, gathered in a matter unrelated to the charge before the Circuit Court.

I would hold that information within the police Internal Affairs Department does not come within the scope of Rule 4-263(a). Although the information sought by appellant is po*134tential impeachment material, it is information contained within the confidential personnel files of the police officer, and is likely to be unknown to the prosecutor. Under Rule 4-263(a), the prosecution has a duty to disclose to the defense, without a request, “[a]ny material or information tending to negate or mitigate the guilt or punishment of the defendant as to the offense charged.” Encompassed within this duty to disclose is not only exculpatory evidence, but also impeachment evidence. See Williams, 392 Md. at 206-10, 896 A.2d at 980-82. Although facts known to the police are to be imputed to the State for Brady purposes and are subject to mandatory disclosure obligations without a request, this duty under Rule 4-263 is limited to information related to the specific case.

United States v. Avellino, 136 F.3d 249 (2d Cir.1998) is instructive on this point. There, the court explained the rationale for not expanding the scope of the prosecutor’s duty to search for exculpatory information to include knowledge of information not gathered in connection with the case as follows:

“[Kjnowledge on the part of persons employed by a different office of the government does not in all instances warrant the imputation of knowledge to the prosecutor, for the imposition of an unlimited duty on a prosecutor to inquire of other offices not working with the prosecutor’s office on the case in question would inappropriately require us to adopt ‘a monolithic view of government’ that would ‘condemn the prosecution of criminal cases to a state of paralysis.’ ”

Id. at 255 (quoting United States v. Gambino, 835 F.Supp. 74, 95 (E.D.N.Y.1993)); see also United States v. Stein, 424 F.Supp.2d 720, 723 (S.D.N.Y.2006) (citing Avellino, and holding that the prosecution did not have a duty to search information in possession of the Internal Revenue Service that was not gathered in connection with the case, even though IRS criminal investigators were assisting in the prosecution of the case).

*135The records of Detective Turner are personnel records and as such, under Md. Code (1984, 2004 Repl. Vol., 2005 Cum. Supp.), § 10-616(i) of the State Government Article, are confidential. See Kirwan v. The Diamondback, 352 Md. 74, 82-83, 721 A.2d 196, 200 (1998) (interpreting § 10 — 616(i), and concluding that it reflects “a legislative intent that ‘personnel records’ mean those documents that directly pertain to employment and an employee’s ability to perform a job”); Baltimore City Police Dep’t v. State, 158 Md.App. 274, 282-83, 857 A.2d 148, 153 (2004) (applying Kirwan, and holding that police internal affairs records are “personnel records” within the meaning of § 10-616). Even though these records are not subject to the mandatory disclosure by the State under 4-263(a), they may nonetheless be subject to discovery by a defendant in a criminal case under certain circumstances, but subject to discovery only pursuant to certain procedures.

In the context of pretrial discovery, in order to obtain access to police officer Internal Affairs records, a defendant should file a motion pursuant to Rule 4-264,4 asking the court to issue a subpoena for the records. In the motion, the defendant should include a description of the records or information sought and good cause for the discovery or disclosure, including a statement as to the materiality of the information to the subject matter involved in the pending case. Cf. Zaal v. State, 326 Md. 54, 87, 602 A.2d 1247, 1263-64 (1992) (setting forth procedures for discovery by a criminal defendant of confidential public records, and specifically requiring a threshold showing of the need to inspect the records). If the trial court is satisfied that this threshold showing has been made, it then should ordinarily conduct an in camera examination of the potentially relevant records to determine whether they have *136any relevance to the issues presented in the case before the court, and order disclosure of those records which are material. See id. (prescribing that, after threshold showing of need to inspect has been satisfied, “the court may elect to review the records alone, to conduct the review in the presence of counsel, or to permit review by counsel alone, as officers of the court, subject to such restrictions as the court requires to protect the records’ confidentiality,” and further specifying factors that courts should take into account in deciding between these alternatives). This procedure balances the need of a criminal defendant to access information material to the defense with the State’s legitimate interest in the confidentiality of police personnel records. This procedure is consistent with a criminal defendant’s due process right of access to exculpatory information contained in public records that are confidential under state law.

Confidential Internal Affairs police personnel records contained within the police department are different from information contained within the files of the State’s Attorney’s Office. I conclude that the State did not have an obligation under Rule 4-263(a) to disclose to appellant the police officer’s disciplinary records or information regarding the disciplinary action taken against the officer because this information and material was not subject to potential disclosure under Rule 4-263 by subsection (g). The disciplinary records themselves involved prior, unrelated cases and in no way arose as a result of the investigation or prosecution of appellant.

For the foregoing reasons, I would remand the case to the Circuit Court, without affirming or reversing, for the limited purpose of holding a hearing on the juror voir dire issue.

Judge HARRELL and Judge BATTAGLIA have authorized me to state that they join in the views expressed in this opinion.

. This ground is not at issue in this appeal.

. As discussed supra, appellant’s counsel was incorrect in stating that the trial court denied Jones’s motion. As noted, Jones’s motion was withdrawn prior to a ruling by the trial court. Nonetheless, appellant’s counsel's confusion on this point is perhaps understandable given that the trial court opined on how it would have ruled on Jones’s motion.

. I do not think that the trial court was suggesting that impeachment materials were outside the scope of Brady requirements. To the extent that the judge’s remark might be interpreted as such, obviously that is incorrect. See Youngblood v. West Virginia, - U.S. -, -, 126 S.Ct. 2188, 2190, 165 L.Ed.2d 269, 272-73 (2006) (citing United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985) (holding that Brady applies to impeachment evidence)).

. Md. Rule 4-264 provides as follows:

“On motion of a party, the circuit court may order the issuance of a subpoena commanding a person to produce for inspection and copying at a specified time and place before trial designated documents, recordings, photographs, or other tangible things, not privileged, which may constitute or contain evidence relevant to the action. Any response to the motion shall be filed within five days.”