author: Reed, J.

text:
    145 A.3d 51
    Karen KUNDA v. William MORSE, et ux.
    No. 1059,
    Sept. Term, 2014
    Court of Special Appeals of Maryland.
    August 31, 2016

      Argued by: E. Ellis Rollins, Elkton, MD, for Appellant.
    Argued by: Michael D. Smigiel, Sr., Elkton, MD, for Appel-lee.
    Panel: Graeff, Kehoe, Reed, JJ.
   Reed, J.

The small business at the heart of this appeal is the source of a rather large dispute. Karen Kunda, appellant, entered into a contract with William and Sharon Morse, appellees, for the sale and transfer of the Hacks Point General Store and associated property. As part of the transaction, Ms. Kunda agreed to finance a portion of the sale price. Difficulties arose with repayment of the loan and the transaction broke down into accusations of breach of contract. The Morses filed their complaint against Ms. Kunda in the Circuit Court for Cecil County and, after a bench trial, emerged victorious on their breach of contract claim. Based on its factual findings, the trial court awarded the Morses $200,000 in damages, an amount greater than the $102,600 originally requested in the complaint. Ms. Kunda quickly noted her appeal to this Court.

Ms. Kunda presents two questions for our review, which we rephrase as follows:

I. Did the trial court err when it determined that appellant breached the contract?
II. Did the trial court err in its calculation of economic damages?

We answer both of these questions in the negative and, therefore, affirm the trial court’s order.

Factual and Procedural Background

Karen Kunda, appellant, entered into an agreement to transfer her small business, the Hacks Point General Store, Inc. (“Hacks Point”), and associated real property to William and Sharon Morse, appellees. Hacks Point is a small general store near the waterfront of the Bohemia River in Earleville, Maryland. Ms. Kunda was the sole shareholder of Hacks Point and holder of the store’s liquor license. Although Hacks Point was ostensibly a general store, a major source of the business’ revenue was slot machines of questionable legality. With the slot machines, the business allegedly brought in approximately $8,000 per week.

With an eye, perhaps, toward the advantages of this revenue stream, the Morses entered into a contract (the “agreement”) with Ms. Kunda on September 29, 2007, to buy the Hacks Point business and property. Per the agreement, the Morses would purchase the general store building, the adjacent residence, and 99 out of 100 shares of corporate stock for a total of $846,950. The financing provision of the sale agreement stated that the Morses would obtain financing in the amount of $622,000, and Ms. Kunda would provide a loan in the amount of $224,950 to be paid back over 240 months with 8% interest.

The agreement also stated that, pending full repayment of the debt, all shares of the corporation would be placed in a voting trust with Ms. Kunda serving as trustee. She would vote the shares of the corporation to elect the Morses as directors of Hacks Point. In the event of default, however, the shares would be voted as directed by Ms. Kunda.

Settlement was scheduled for October 4, 2007, but the Morses could not arrange for bank financing in that short time-span. The parties agreed in an addendum to the original sale agreement that settlement would take place on May 1, 2011. The addendum required the Morses to make a $100,000 deposit with Ms. Kunda on the date the parties signed the addendum, October 21, 2007. It further required a second deposit of $174,950, either in full or by monthly installments, by June 1, 2008. In addition to the deposits, the addendum required the Morses to pay $4,500 monthly as lease payments to Ms. Kunda.

According to Ms. Kunda’s trial testimony, the Morses paid the initial $100,000 required by the sale addendum approximately one week after signing that document, on or about October 29, 2007. The Morses then paid approximately $100,000 for the second deposit in June 2008. According to Ms. Kunda, she agreed to amortize the remaining $74,950 over a two-year period.

In June of 2010, the Morses defaulted on the remaining $74,950 debt obligation. Per the voting trust recital of the agreement, Ms. Kunda voted the shares to re-establish herself as director, as well as president, vice president, and secretary of Hacks Point. She then issued a notice to the Morses indicating that they were no longer directors of the corporation, and that they were no longer permitted on the premises.

The Morses filed their complaint with the trial court on December 29, 2010. In it, they alleged several counts of breach of contract against both Ms. Kunda and the corporation. The breaches allegedly arose from Ms. Kunda’s failure to return the approximately $100,000 paid for the store’s stock; her preventing the Morses from completing their purchase of Hacks Point; and her failure to disclose the illegality of the slot machines. Ms. Kunda and the corporation answered the complaint on June 80, 2011, and countersued on July 29, 2011.

In the counter-complaint, Ms. Kunda and the corporation alleged the Morses had breached the contract by failing to honor the terms of the agreement and its addendum, and also by failing to pay several outstanding bills of the corporation. The result was damages in the amount of $75,000 for the remaining debt obligation under the agreement, and $10,415 for the outstanding bills of the corporation. Ms. Kunda and the corporation also alleged the Morses converted both corporate and personal property when they removed that property from the store.

After a number of delays, the matter proceeded to a bench trial on July 8 and 9, 2014. At the conclusion of the proceedings, the trial court took the matter under advisement and then issued its opinion on July 17, 2014. The court made several findings of fact in the opinion, including that the Morses had made both the first and second payments of $100,000, and that they were paying approximately $500-$700 monthly for the $75,000 Ms. Kunda agreed to finance. The trial court also did not credit Ms. Kunda’s assertion that she retook the property on the basis of a corporate decision. Instead, the court determined the Morses were “muscled out” of the property when Ms. Kunda took back the property well before the expiration of the delinquency period. Moreover, the court additionally found there was no anticipatory breach because the Morses did not inform Ms. Kunda they would not be able to pay the owner financing or principal of the loan. Ultimately, the court determined Ms. Kunda had prevented the Morses from further performing under the contract when she excluded them well before the June 2010 delinquency period and eleven months before the final settlement date of May 1, 2011.

The trial court denied the claims of Ms. Kunda and the corporation, but it also denied the Morses’ claim for nondisclosure of the illegality of the slot machines. Additionally, because the Morses may have known that the slot machines were sources of illegal revenue before signing the agreement, the trial court did not declare the contract an illegal agreement. The court, however, did award $200,000 for the initial installments after determining that Ms. Kunda was in material breach of the agreement. It declined to award the Morses their lease payments because those were not intended to apply to the purchase prices under the agreement, and also declined to award the monthly payments for the owner financing on the basis of insufficient evidence. The opinion and judgment were docketed on July 19, 2014.

Ms. Kunda timely noted her appeal on July 31, 2014.

Discussion

A. Parties’ Contentions

Ms. Kunda claims the trial court erred in two respects in this case. First, she argues that it was the Morses, and not her, who initially breached the agreement. Ms. Kunda contends that the Morses had several opportunities to fulfill the terms of the agreement throughout the life of the contract, but failed. Accordingly, when the Morses notified Ms. Kunda in June 2010 that they would not be able to meet the terms of the agreement, they breached the contract at that time. Moreover, Ms. Kunda contends, even if the Morses were not in default of the agreement, they demonstrated that they were not ready, willing, and able to perform.

In addition to her contract claims, Ms. Kunda argues that the trial court erred in awarding damages of $200,000, which was in excess of the $102,600 that the Morses requested in their pleading.

The Morses counter Ms. Kunda’s position and state the evidence presented tended to support that Ms. Kunda initially breached the contract.

B. Standards of Review

Actions tried without a jury are reviewed under Maryland Rule 8-131(c). We shall review the case both on the law and the evidence. See Md. Rule 8-131(c). An appellate court will defer to the trial court’s findings of fact, and will not disturb those findings unless they are clearly erroneous. See State Sec. Check Cashing, Inc. v. Am. Gen. Fin. Servs. (DE), 409 Md. 81, 110-11, 972 A.2d 882 (2009); accord Clickner v. Magothy River Ass’n, Inc., 424 Md. 253, 266, 35 A.3d 464 (2012). The trial court’s legal conclusions do not receive the same deference. See Banks v. Pusey, 393 Md. 688, 697, 904 A.2d 448 (2006). We will review the trial court’s application of law to facts de novo. See id.; accord Clickner, 424 Md. at 266, 35 A.3d 464. In an appeal presenting both legal and factual issues, we shall review each issue under the appropriate standard. See Clickner, 424 Md. at 266-67, 35 A.3d 464.

C. Analysis

i. Breach of Contract

Sundry arguments notwithstanding, the parties’ primary dispute is who was first to breach the contract. Ms. Kunda argues the Morses’ purported repeat failures to pay the agreed-upon amounts under the agreement was the initial breach. The Morses, on the other hand, claim Ms. Kunda breached their contract by evicting them prior to the delinquency period.

We are asked, therefore, to determine whether Ms. Kunda or the Morses initially breached the agreement, and whether that breach was material. This is a question of fact that our standard of review, supra, compels us to consider with deference the trial court’s factual findings.

Generally, a breach of contract is defined as a “failure, without legal excuse, to perform any promise that forms the whole or part of a contract.” Weaver v. ZeniMax Media, Inc., 175 Md.App. 16, 51, 923 A.2d 1032 (2007) (citing 23 Richard A. Lord, Williston on Contracts § 63:1 (4th ed., Supp. 2006)). A promise, as referred to in that definition, is “a manifestation of intention to act ... in a specified way, so made as to justify a promise in understanding that a commitment has been made.” Weaver, 175 Md.App. at 51, 923 A.2d 1032 (citing Restatement (2d) of Contracts § 2(1) (1981)). The term “default” is used interchangeably with “breach.” See Nylen v. Geeraert, 246 Md. 4, 10, 226 A.2d 878 (1967) (“When [the term “default” is] used in respect of an obligation created by contract, the ordinary meaning is failure of performance[.]”). When “default” is used with respect to a debt, “it means simply nonpayment.” Id. (citation omitted).

Per the agreement, Ms. Kunda agreed to convey to the Morses the Hacks Point General Store business, 99 of the 100 shares of common stock in the associated corporation, the real estate upon which the business was located, and all of the business’ equipment and sales stock. In exchange, the Morses agreed to pay $846,950 for the entire transaction. The parties agreed that the Morses would obtain a bank loan in the amount of $622,000 and that the owner would finance the remaining $224,950.

When it became apparent that the Morses would not be able to obtain bank financing before the initial closing date of October 4, 2007, the parties signed a sale addendum that slightly restructured the transaction. There, the parties agreed to two deposit payments: The first, in the amount of $100,000, would be payable upon the signing of the sale addendum in October 2007, while the second, in the amount of $174,950, would be payable in June 2008. The record is not entirely clear as to whether the parties agreed to amortize the approximately $75,000 that remained after the Morses made the first deposit payment in full and put $100,000 towards the second. Regardless, what is clear is that Ms. Kunda agreed to extend settlement to May 1, 2011, and there were two deposit payments promised, the latter of which may have been subject to financing.

Notably, the agreement states that “[The Morses] shall be in default if any payment is not made within SO days of the due date.” (emphasis added). Ms. Kunda testified the Morses did not make their required payment on June 1, 2010, and that her attorney stated she had the right to evict the Morses before they were technically in default. Although she did not explicitly state she evicted the Morses because they had not yet remitted the June 2010 installment, that may reasonably be inferred from her testimony.

The challenge for Ms. Kunda, however, is that the initial agreement sets forth the above-mentioned delinquency period during which the Morses could remit payment without defaulting under the contract. The Morses could be considered in default only after the passage of 30 days without payment. Moreover, the addendum to the agreement extended the closing date to May 1, 2011, while stating that “[a]ll terms per the original ‘Agreement of Sale’ dated September 29, 2007 will remain in effect.” According to those original terms, the unpaid principal and interest, which the agreement termed the balloon payment, was due 24 months from the settlement date of May 1, 2011, ie., May 1, 2013. Entering onto the property and evicting the Morses prior to the expiration of the delinquency period — and well before the balloon payment was actually due — was contrary to the terms of the agreement and, therefore, a breach by Ms. Kunda.

The language of the agreement did not support Ms. Kunda’s premature entry onto the property. The original agreement, all terms of which remained valid after execution of the addendum, stated under the “Possession” subsection:

If for any reason the Buyer defaults on the purchase of the Corporation scheduled for October I, 2007, the Buyer will relinquish all corporate profits to the Seller (and) will provide adequate back-up information (and) will vacate the premises (and) all Corporate property and assets will remain with the Corporation in the same working order in which they were on October 1, 2007.

(emphasis added). Reading this term along with the extension of the settlement date per the addendum, we determine the contract did not permit for Ms. Kunda’s eviction of the Mors-es. The closing date was extended to May 1, 2011, meaning that, so long as the Morses continued to make their monthly payments, they were permitted to remain on the premises. Further still, the Morses had not yet defaulted on their June 2010 payment because they were well within the delinquency period. Accordingly, Ms. Kunda breached the terms of the agreement when she entered onto the property before the Morses had in fact defaulted.

For the reasons outlined above, the trial court correctly determined that Ms. Kunda breached the agreement initially.

ii. Calculation of Economic Damages

Ms. Kunda additionally contends that the trial court erred in awarding the Morses $200,000 in damages. She argues the trial court incorrectly awarded $200,000 in compensatory damages where the Morses prayed for $102,600 in Count I of the complaint. Further complicating matters is that the Morses alleged the damages were for the general store’s stock, but, in the record, they indicated the amount was for one of the two down payments they made. Accordingly, Ms. Kunda argues the trial court should not have awarded $200,000 where the Morses specifically demanded $102,600. The current landscape of the law, however, persuades us that the trial court did not err.

Maryland Rule 2-306 explains the requirements for a valid pleading in the circuit court. Per the Rule, a plaintiff must include in her pleading “a clear statement of the facts necessary to constitute a cause of action and a demand for judgment of the relief sought.” Md. Rule 2-306. Notwithstanding other requirements for pleadings under the law, a demand for damages that exceeds $76,000 “shall not specify the amount sought, but shall include a general statement that the amount sought exceeds $75,000.” Id. The Rule, however, had different requirements before 2012.

Prior to 2012, Rule 2-305 required that “[a] pleading that sets forth a claim for relief ... shall contain a clear statement of the facts necessary to constitute a cause of action and a demand for judgment for relief sought. Unless otherwise required by law, a demand for a money judgment shall include the amount sought.” Hoang v. Hewitt Ave. Assocs., LLC, 177 Md.App. 562, 585, 936 A.2d 915 (2007) (quoting former Rule 2-305 (1997) (amended 2003)) (emphasis added) (omissions in original). This version of the Rule was an amendment adopted in early 1998. See Hoang, 177 Md.App. at 585, 936 A.2d 915. It embraced the common law rule that a plaintiff was limited to the damages sought in the ad damnum clause of the operative pleading. See id. at 587, 936 A.2d 915 (“It was implicit in the Maryland common law rule limiting recovery of damages to the amount sought in the operative pleading that the ad damnum clause of that pleading set forth the amount of damages being sought; otherwise, it would be impossible to determine whether the amount awarded exceeded the amount requested. The 1998 amendment to Rule 2-305 thus added language stating expressly what already was required implicitly”). Per these pleading requirements, a plaintiff could not state simply that she sought damages “in excess of’ a given amount. Id. at 588, 936 A.2d 915. Such a demand would not give fair notice to a defendant as to the amount being sought. See id. (explaining that a concrete figure gives a defendant proper notice of the amount at stake, whereas a demand “in excess of’ a certain amount only sets a floor for damages). It was necessary as a matter of fairness, therefore, that a plaintiff demand a specific amount so the defendant was on notice as to how much he would potentially be required to pay.

Under the 1998 Rule, however, a plaintiff who did receive a verdict awarding damages greater than what the ad damnum clause demanded could amend that part of her complaint to reflect the actual award. See Bijou v. Young-Battle, 185 Md.App. 268, 290, 969 A.2d 1034 (2009). The plaintiff had to seek this opportunity before the entry of an appealable final judgment, and the amendment was to be accomplished “promptly” after return of the verdict. Id. If a plaintiff failed to seek amendment of the ad damnum clause, the defendant could seek remittitur of the award so it would conform to the complaint, or the plaintiff would have to release the excess at the appellate level in order to prevent a full reversal of the judgment. See id. at 287, 292, 969 A.2d 1034 (explaining that releasing the excess of an award at the appellate level prevents the judgment from being wholly reversed on appeal, and also that the court erred in failing to grant defendants’ motion for remittitur where the plaintiff did not amend the ad dam-num clause).

The Hoang Court noted that, when amendments to Rule 2-305 were being considered in 1998, the Courts of Appeals Standing Committee on Rules of Practice and Procedure (“Rules Committee”) considered a number of possible amendments to the Rule. See id. at 584, 936 A.2d 915. One proposed amendment was to eliminate the need for ad damnum clauses altogether and to require that a plaintiff simply state in her pleading that the jurisdictional amount was met and that she was demanding a money judgment. See id. at 584, 936 A.2d 915. The Rules Committee decided against that amendment at the time, opting instead for the addition of language indicating that “a demand for a money judgment shall include the amount sought.” Id. at 584, 587, 936 A.2d 915. The Hoang Court explained that the amendment ultimately adopted by the Court of Appeals requiring the demand of a concrete figure of damages was consistent with the main purpose of pleading, i.e., fair notice. See id. at 583, 587-88, 936 A.2d 915 (citing Scott v. Jenkins, 345 Md. 21, 27-28, 690 A.2d 1000 (1997)).

That version of Rule 2-305 prevailed until 2012, when the Rule was again amended. The 2012 amendment to the Rule adopted one of the rejected 1998 proposals and fully eliminated the requirement that a plaintiff plead a specific amount of damages in all instances. See Court of Appeals Standing Comm, on Rules of Practice and Procedure, 174th Rep., July 26, 2012, at 217. In addition, it simplified the pleading requirements such that they were tied to a jurisdictional amount of $75,000. See id. If the amount demanded was greater than $75,000, only a statement to that effect was necessary; if, however, the amount demanded was less than $75,000, then a specific figure was required because the amount was relevant to the question of circuit court jurisdiction and the right to a jury trial. See id. In proposing its recommended amendment, the Rules Committee explained that

[t]he amendment is proposed in light of discussions with attorneys who recommend eliminating the requirement to plead specific amounts in favor of a framework similar to that used in medical malpractice cases. See [Md.] Code, Courts [& Jud. Proc.] Article, § 3-2A-02(b). It is thought that ad damnum clauses are damaging to defendants who become frightened upon receiving complaints with huge amounts specified in the clauses; to plaintiffs who may become disillusioned as to the value of their cases; and to the legal profession because they lead to a negative public perception by distorting the attorney’s actual valuation of the case.
The Subcommittee has been advised that defendants and insurance companies do not exclusively rely upon the amount of damages sought in ad damnum clauses to determine the value of the case. Insurance companies set aside reserves based upon their own investigation and experience. Defendants and insurance companies obtain information about the actual value of the case during the discovery process.

Id. Accordingly, the Rules Committee thought it more appropriate simply to set a jurisdictional threshold for an ad damnum, and to allow the parties to reach a realistic amount through discovery and investigation. The gross over- or undervaluation of damages was harmful to the perceptions of parties relative to their cases, and to the public’s perception of the legal profession.

The amendment of Rule 2-305 between the time the complaint was filed in 2010 and the time a judgment was entered in 2014 in favor of the Morses does not significantly affect that judgment. Generally, “[c]ourts must apply the law in effect at the time a case is decided, provided that its application does not affect intervening vested rights,” Mraz v. Cnty. Comm’rs of Cecil Cnty., 291 Md. 81, 90, 433 A.2d 771 (1981) (emphasis added) (citations omitted). Parties do not hold vested rights in the procedures used to enforce their substantive rights, meaning that a change in procedural law not affecting substantive rights will apply to “all actions whether accrued, pending, or future unless a contrary intention is expressed.” Id. (emphasis added); accord Roth v. Dimensions Health Corp., 332 Md. 627, 637-38, 632 A.2d 1170 (1993). Rule 2-305 is the rule governing the pleading requirements for claims to relief in the circuit court — it is a classic procedural rule. The Morses’ substantive right to damages for a breach of contract is not affected by the change in the Rule. It only affects how the Morses would have had to request damages and, arguably, it favors them by simplifying the requirements. Moreover, the Court of Appeals, which adopted the 2012 amendment to Rule 2-305, did not express a “contrary intention” to the amendment being applied to “accrued, pending, or future [actions].” Mraz, 291 Md. at 90, 433 A.2d 771. To the contrary, by Rules Order dated October 4, 2012, the Court of Appeals specifically stated that the amendment “shall take effect and apply to all actions commenced on or after January 1, 2013 and, insofar as practicable, to all actions then pending.” (Emphasis added).

Although the Morses’ right to compensatory damages is unaffected by the change in the Rule, the Morses' ad damnum clause in Count I is caught in a procedural purgatory. They pleaded a specific amount of damages per the requirements of the pre-2012 version of Rule 2-305 — the $102,600 they paid for the inventory of the general store. The trial court, however, awarded them $200,000, ostensibly for the two $100,000 deposits they made to Ms. Kunda. Were the prior version of Rule 2-305 still in effect, either the Morses would have had to seek leave to amend their complaint in order to conform the ad damnum to the trial court’s award, or Ms. Kunda would have had to file for remittitur. See Bijou, 185 Md.App. at 292, 969 A.2d 1034. The record demonstrates that neither of those motions were filed after the trial court entered judgment in favor of the Morses for $200,000. Once the judgment became final and appealable, under the pre-2012 Rule, the Morses would have had to release the excess $97,400 in order to save the judgment from complete reversal. See id. at 289, 292, 969 A.2d 1034.

The current version of the Rule, however, presses the reset button on these pre-2012 ad damnum requirements. The pleading, as of the date of trial, was not in full compliance with the Rule for obvious reasons. Nevertheless, the complaint did plead an amount greater than $75,000, although the amended Rule did not require that the Morses list the reason for the demand (repayment of the amount paid for the store’s inventory). In any case, the Rule does not require we vacate the award and remand to the trial court. The Rules Committee did away with the strict pleading requirements for ad damnum clauses in order to promote the recovery of realistic awards borne out by investigation and evidence, and to mitigate negative perceptions of the legal profession. The award the Morses received is consistent with the purposes of the current Rule. It was neither an absurdly high nor absurdly low figure and was supported by evidence of the down payments the Morses made to Ms. Kunda. Moreover, the Morses did not seek a grossly overinflated amount of compensatory damages in an effort to strongarm Ms. Kunda into an unjustified settlement.

Because the Morses’ substantive rights were not affected by the amendment of Rule 2-305, the present version of the Rule applies to the damages award they received. Nevertheless, because the underlying purpose of the Rule has changed, we hold that Ms. Kunda was not required to seek remittitur, nor were the Morses required to seek leave to amend the ad damnum clause or file for a release of the excess award in this Court. The trial court’s award is supported by the evidence and factual findings of that court, and, accordingly, the judgment conforms to the purpose of the current version of the Rule. Accordingly, we affirm the judgment of the trial court.

JUDGMENT OF THE CIRCUIT COURT FOR CECIL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

      . Ms. Kunda originally presented her questions to this Court as follows:
      1. Was the court in error in determining that Appellees had not first breached the contract? Was the court in error in determining that Appellant breached the contract?
      2, Was the court in error in its calculation of economic damages?

      . Ms. Kunda would retain one share of stock, and the Morses had the option, upon repayment of the full debt obligation, to purchase the final share for the price of $1.00.

      . Per the agreement, the Morses would be in default 30 days after the due date of a payment.

      . The Morses additionally argue in their brief that the trial court erred in finding they could not prove their claim for deceit. They urge this Court to reverse the trial court because it failed to draw an adverse inference against Ms. Kunda when she asserted her Fifth Amendment privilege not to testify regarding the legality of the slot machines. This argument, however, is not presented in response to the appellant’s contentions regarding Count I of the complaint. It is presented to seek our review of the trial court’s denial of Count III of the complaint. As such, it resembles less a counterargument and much more a cross-appeal. Maryland Rule 8-202(e) requires notice of a cross-appeal to be filed "within ten days after the date on which the first notice of appeal was filed or within any longer time otherwise allowed by this Rule.” The record does not demonstrate that the Morses filed a notice of a cross-appeal in this case. Accordingly, "if a timely cross-appeal is not filed, we will ordinarily review only those issues properly raised by the appellant[.]” Maxwell v. Ingerman, 107 Md.App. 677, 681, 670 A.2d 959 (1996). Our review in this matter will be limited to those questions presented by the appellant in her brief, which are limited to a review of Count I of the complaint.

      . The $75,000 threshold was selected because that is the amount necessary for removal to a federal district court on the basis of diversity of citizenship jurisdiction. See 28 U.S.C. § 1332 (West 2015); see also Rules Committee, 174th Rep., at 216.


source: Caselaw Access Project

author: Opinion by Nazarian, J.

license: Public Domain

text:
    145 A.3d 61
    Darrell BELLARD v. STATE of Maryland
    No. 1281
    Sept. Term, 2014
    Court of Special Appeals of Maryland.
    August 31, 2016

      Argued by: Julia C. Schiller (Paul B. DeWolfe, Public Defender on brief) all of Baltimore, MD, for Appellant.
    Argued by: Todd W. Hessel (Brian E. Frosh, Attorney General on brief) all of Baltimore, MD, for Appellee.
    Panel: Nazarian, Reed, Robert A. Zarnoch, (Retired, Specially Assigned), JJ.
   Opinion by Nazarian, J.

This quadruple-murder case presents, among other things, the question of whether legislation repealing Maryland’s death penalty in 2013 also created new rights for defendants facing life imprisonment without the possibility of parole. Darrell Bellard was convicted by a jury in the Circuit Court for Prince George’s County of four counts of first-degree murder, three counts of conspiracy to commit murder, and other related offenses. The court (not a jury) sentenced him to life without parole for the first-degree murders and consecutive life sentences for the three conspiracy convictions.

On appeal, Mr. Bellard claims the circuit court erred by failing to strike the State’s notice of intent to seek a sentence of life without parole, by sentencing him on more than one count of conspiracy to commit murder, by permitting the State to offer the testimony of an expert witness who was not timely disclosed in discovery, by admitting evidence of prior bad acts, and by denying his motion to suppress evidence. The State agrees that Mr. Bellard should only have been convicted and sentenced on one count of conspiracy, and because we agree as well, we vacate two of Mr. Bellard’s three conspiracy convictions and the corresponding sentences. We disagree, however, that Mr. Bellard was entitled to have a jury determine his sentence, and we affirm his convictions and sentence in all other respects.

I. BACKGROUND

On August 6, 2010 at 2:42 a.m., Officer Hong Park of the Prince George’s County Police Department responded to an address in Lanham, where he was flagged down by a witness and directed to an apartment over a two-car garage. When Officer Park entered the apartment, he saw a woman lying face-down on the ground in a pool of blood and three more bloody bodies — another woman and two children — on a bed in one of the bedrooms. All had suffered (and died) from gunshot wounds to the head. After surveying the apartment, which took about five minutes, Officer Park left and saw a man, later identified as Mr. Bellard, walking up the steps. Officer Park stopped him and asked him why he was there. Mr. Bellard responded that he was coming back to check on his friends.

Officer Park asked Mr. Bellard to “step down.” Mr. Bellard walked down the steps, followed by Officer Park, proceeded to the yard, and came to rest near a big tree. Officer Park asked, “Just in case we need to talk again, can you just stand by for a second?” Mr. Bellard indicated that there was no problem, and Office Park left Mr. Bellard by himself; he was not placed under arrest or restrained in any way, and no one guarded him.

Sometime around 3:45 a.m., Officer Stephen Campbell responded to the scene and, shortly thereafter, saw Mr. Bellard leaning against a car. Officer Campbell asked Mr. Bellard his name and why he was there, and “told him that because he was there, we needed to talk to him and, if he would, I would like to take him down to our office and speak with him there.” Mr. Bellard agreed to go to the station. Before being transported to the criminal investigation division (“CID”), Officer Donny Hacker told Mr. Bellard he needed to “stand by ... [because they] just needed to talk to him.” Mr. Bellard asked Officer Hacker if he could get his cigarettes from his car. After getting permission from a supervisor, Officer Hacker retrieved the cigarettes. For about the next half an hour, Mr. Bellard stayed at the scene, unattended and unrestrained. There were numerous officers present, and several patrol cars at the scene, but Mr. Bellard only interacted with Officers Park, Detective Campbell, and Officer Hacker.

At approximately 4:00 a.m., Officer Hacker transported Mr. Bellard to CID. He was patted down for weapons before getting in the police car, but sat unrestrained in the front passenger seat, and he seemed calm and cooperative. Upon arriving at CID, officers escorted Mr. Bellard to an interview room, leaving the door open at Mr. Bellard’s request after he mentioned that he was claustrophobic.

While Mr. Bellard was being interviewed, Detective Ober interviewed Frank Brooks, a distant relative of Mr. Bellard’s by marriage. At approximately 7:30 a.m., Detective Campbell learned from Detective Ober that, according to Mr. Brooks, Mr. Bellard was a drug dealer from Texas and that he was mad at Mr. Brooks and his wife, Dawn (Mr. Bellard’s brother’s sister-in-law), because he had been “ripped off during a prior visit, and [thought] he was ripped off again.”

When Detective Campbell confronted Mr. Bellard with this statement, Mr. Bellard admitted to bringing marijuana and a gun with him from Texas. Detective Campbell read Mr. Bel-lard his Miranda rights. Mr. Bellard signed a waiver form and agreed to continue the interview. At no point was Mr. Bellard told that he was under arrest, and at no point did he ask to speak to his lawyer or invoke his right to silence.

Detective Campbell continued the interview, and at approximately 8:55 a.m., asked Mr. Bellard about the car he had driven to Maryland, then told Mr. Bellard that he would like to get a DNA sample and look in the vehicle. Detective Campbell read consent forms to Mr. Bellard and advised him that he did not have to sign them, that it was “strictly voluntary.” Mr. Bellard signed a written consent for both the DNA sample as well as for the search of his car. An officer then searched Mr. Bellard’s car and recovered a cell phone.

Detectives continued to interview Mr. Bellard for the next several hours. At approximately 1:00 p.m., as Detective Kerry Jernigan began interviewing Mr. Bellard, it became apparent that Mr. Bellard’s colostomy bag was leaking. They made several attempts to obtain a new colostomy bag, but none were successful until a detective obtained one from a hospital at approximately 8:30 p.m.

While Mr. Bellard was being questioned, detectives were simultaneously tracking down other potential witnesses, including Mr. Bellard’s girlfriend, T’Keisha Gilmer, who implicated Mr. Bellard in the quadruple homicide. Detective Jerni-gan confronted Mr. Bellard with this accusation and told him that he needed to “think through what he needs to say” and “to think about where this is going.” Mr. Bellard became agitated and began yelling for “T’Keisha to tell the whole truth.” Mr. Bellard later told the detectives that he and Ms. Gilmer had observed the homicides, and that a hit man from Texas had come to kill Dawn. Detective Anthony Schartner read Mr. Bellard his Miranda rights again, and again Mr. Bellard waived his rights. He then made a statement, which was recorded, that he and Ms. Gilmer had observed the hit man commit the murders, after which they cleaned up the crime scene and disposed of their clothes and some shell casings. Detective Schartner responded that the clothes they were wearing while cleaning up the crime scene could possibly “assist him with proving that he was innocent.” So Mr. Bellard agreed to leave CID to show the detectives where he had disposed of the clothes and the shell casings.

But when the trip to the alleged location of the clothes and shell casings revealed nothing, Mr. Bellard admitted to committing the murders. They returned to CID where Mr. Bellard was questioned again, and again admitted that he had shot the four people, and acknowledged that he had given the statement voluntarily. This interview was recorded as well.

Mr. Bellard was charged with four counts of first-degree murder, four counts of conspiracy to commit murder, and four counts of use of a handgun in the commission of a felony or crime of violence. On August 28, 2012, the trial court held a motions hearing during which, among other things, the court quashed Mr. Bellard’s subpoenas for internal Prince George’s County Police records relating to the case and a group of named officers. A hearing on a motion to suppress evidence was held on December 2 and 3, 2013, and the court denied that motion. A jury trial began on April 8, 2014, and lasted eight days.

The testimony at trial revealed that Mr. Bellard had traveled to Maryland from Texas in June 2010 with a large quantity of marijuana to sell, but the marijuana had been stolen from his hotel room. He made a second trip in August 2010, this time with Ms. Gilmer, with approximately sixty pounds of marijuana. On August 6, Mr. Bellard met Ms. Brooks and her children, broke up the marijuana in Ms. Brooks’s apartment above the garage, and stored it in a cooler before the group left to go to a store. When they returned to the apartment, they encountered Mwasiti Sikyala, who lived in the main part of the house. Ms. Sikyala told them that three armed men had just come from the apartment. Everyone except Ms. Sikyala went upstairs to check on the drugs, which were gone.

This discovery enraged Mr. Bellard, who went back downstairs to his vehicle with Ms. Gilmer and retrieved and loaded two .45 caliber handguns. He ushered Ms. Sikyala back upstairs, with Ms. Gilmer following behind, then shot Ms. Brooks in the leg.

He demanded that Ms. Brooks tell him where the marijuana was and accused her of stealing the marijuana and setting him up, which she denied. So he ordered Ms. Brooks, Ms. Sikyala, and Ms. Sikyala’s two children into a bedroom where Ms. Gilmer held them there at gunpoint while Mr. Bellard made a phone call.

When he finished his call, Mr. Bellard summoned Ms. Brooks to the kitchen and continued interrogating her. He grabbed a pillow and shot Ms, Sikyala twice, first in the stomach, then under her chin.

Mr. Bellard tried to get Ms. Brooks into the bedroom, but she resisted, and he shot her — in the stomach and, while she was on the ground, in the ear.

Then he shot Ms. Sikyala’s two young children and told Ms. Gilmer to photograph them with her phone. She complied.

The little girl was dead.

The little boy was not, though, and he asked if he could use the bathroom. Mr. Bellard told Ms. Gilmer to take him, and she did. When the two returned, Mr. Bellard told the boy to stand on the bed. He pointed his gun at the boy and pulled the trigger.

The gun jammed.

So Mr. Bellard took the other gun from Ms. Gilmer, shot the boy in the head, then shot him in the head again after he fell to the ground.

Ms. Gilmer took another photograph.

The two attempted to clean up the scene and dumped the evidence, including the guns, in a trash bag. They went to a hotel, showered, gathered their clothes, and Mr. Bellard threw them and the trash bag into a dumpster. A while later, Mr. Bellard returned to the scene (not wearing shoes), and encountered the officers investigating the crimes.

The jury found Mr, Bellard guilty of four counts of first-degree murder, three counts of conspiracy to commit murder, and four counts of use of a handgun in the commission of a felony. At a sentencing hearing on June 27, 2014, the court sentenced Mr. Bellard to four consecutive sentences of life without the possibility of parole for the first-degree murder convictions, and three consecutive life sentences for conspiracy to commit murder.

II. DISCUSSION

Mr. Bellard raises six challenges to his convictions and sentences. First and foremost, he contends that the sentencing procedure statute for first-degree murder, as amended by legislation repealing Maryland’s death penalty, entitled him to elect a jury, rather than the court, to determine his sentence. Second, he argues, and the State agrees, that he should only have been convicted of and sentenced for one count of conspiracy to commit murder. His third through sixth questions relate to evidentiary decisions the court made before or during trial.

A. The Trial Court Correctly Struck Mr. Bellard’s Attempt To Elect Sentencing By Jury.

Mr. Bellard argues first that he was entitled to elect to be sentenced by a jury, and that the circuit court erred when it struck his notice to that effect and imposed life sentences without the possibility of parole.-He recognizes, as he must, that non-capital murder defendants in Maryland had not historically been entitled to sentencing by jury, as capital murder defendants were. And he does not contend that the United States or Maryland Constitutions compel sentencing by jury in cases involving life without parole. His argument is a purely statutory one: that the language the General Assembly left behind in Md. Code (2002, 2012 Repl. Vol., 2015 Supp.) § 2-304(b) of the Criminal Law Article (“CR”), after removing the parts relating to the death penalty, extended to defendants facing life without parole the sentencing by jury procedures previously reserved for capital defendants. As a result, he argues, Maryland Rule 4-342 — the Rule that governs sentencing procedure in non-capital cases — conflicts with the statute and must give way to the greater procedural protections, He argues as well that the “sentencing scheme for first-degree murder is void for vagueness as it lacks guidelines for the circuit court or a jury in deciding whether to impose a sentence of life imprisonment without the possibility of parole.”

This argument requires us to take a close look at CR § 2-304, both historically and in the form it assumed after the General Assembly amended the Criminal Law Article to repeal Maryland’s death penalty. We review de novo questions of statutory interpretation. Harrison-Solomon v. State, 216 Md.App. 138, 146, 85 A.3d 310 (2014), aff'd 442 Md. 254, 112 A.3d 408 (2015), and our role “is to ascertain and effectuate that intent of the Legislature.” Stoddard v. State, 395 Md. 653, 661, 911 A.2d 1245 (2006) (quoting Mayor and Town Council of Oakland v. Mayor and Town Council of Mountain Lake Park, 392 Md. 301, 316, 896 A.2d 1036 (2006)). We begin with the plain language of the statute, and “[i]f the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written.” Id. (quoting Jones v. State, 336 Md. 255, 261, 647 A.2d 1204 (1994)). We don’t, however,

read statutory language in a vacuum, nor do we confine strictly our interpretation of a statute’s plain language to the isolated section alone. Rather, the plain language must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute.

Gardner v. State, 420 Md. 1, 9, 20 A.3d 801 (2011) (internal quotations and citations omitted).

The life of this case straddles major developments in the death penalty in Maryland. When Mr. Bellard was first indicted in September 2010, the authorized punishments for first-degree murder were death, life in prison without parole, and life in prison. See CR § 2-201(b) (repealed by 2013 Md. Laws 2298 (S.B. 276), The State decided in this case to file a Notice of Intent to Seek Death Penalty. Id., § 2-202(a). That filing sent the proceedings down a distinct procedural path because, as the United States Supreme Court and our courts have long recognized, death is different:

Death is a unique punishment in the United States. In a society that so strongly affirms the sanctity of life, not surprisingly the common view is that death is the ultimate sanction. This natural human feeling appears all about us. There has been no national debate about punishment, in general or by imprisonment, comparable to the debate about the punishment of death. No other punishment has been so continuously restricted, ... nor has any State yet abolished prisons, as some have abolished this punishment. And those States that still inflict death reserve it for the most heinous crimes. Juries, of course, have always treated death cases differently, as have governors exercising their commutation powers. Criminal defendants are of the same view. “As all practicing lawyers know, who have defended persons charged with capital offenses, often the only goal possible is to avoid the death penalty.” Griffin v. Illinois, 351 U.S. 12, 28, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (Burton and Minton, JJ., dissenting). Some legislatures have required particular procedures, such as two-stage trials and automatic appeals, applicable only in death cases. “It is the universal experience in the administration of criminal justice that those charged with capital offenses are granted special considerations.” Ibid. See Williams v. Florida, 399 U.S. 78, 103, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (all States require juries of 12 in death cases). This Court, too, almost always treats death cases as a class apart[]. And the unfortunate effect of this punishment upon the functioning of the judicial process is well known; no other punishment has a similar effect.

Furman v. Georgia, 408 U.S. 238, 286-87, 92 S.Ct. 2726, 38 L.Ed.2d 346 (1972) (Brennan, J., concurring) (footnote omitted).

In Furman, a splintered Supreme Court invalidated the States’ then-existing death penalties, but stopped short of holding that the death penalty constituted cruel and unusual punishment under all circumstances. Four years later, in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the Court recognized the possibility that the death penalty could be administered by the States in a manner consistent with the Eighth and Fourteenth Amendments to the Constitution. The Court has reaffirmed that principle many times as it has reviewed and refined death penalty procedures in the states that reinstated capital punishment in the intervening years. See, e.g., Glossip v. Gross, — U.S. —, 135 S.Ct. 2726, 192 L.Ed.2d 761 (2015) (analyzing lethal injection protocol); Hurst v. Florida, — U.S. -, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016) (rejecting, on Sixth Amendment grounds, procedure directing judge rather than jury to find aggravating factors); White v. Wheeler, — U.S. -, 136 S.Ct. 456, 193 L.Ed.2d 384 (2015) (per curiam) (qualification of death penalty juries); Kansas v. Carr, — U.S. —, 135 S.Ct. 1698, 191 L.Ed.2d 674, — (2015) (sentencing phase jury instructions). But at the risk of grossly oversimplifying a complicated area of the law, the core principle underlying the courts’ (the Supreme Court’s and ours) analysis of death penalty procedures is that the unique permanence of capital punishment compels procedural safeguards that other punishments do not — even punishments, such as life imprisonment without parole, that are meant to be permanent.

This “difference” manifested itself in a number of ways in Maryland’s post-Gregg capital punishment procedures. One difference lay in the fact that, unlike non-capital cases, juries played a role in sentencing in death cases. At the time of Mr. Bellard’s indictment in 2010, CR § 2-303 provided that when the State gave notice of its intention to seek the death penalty, as it had here, “a separate sentencing proceeding shall be held as soon as practicable after a defendant is found guilty of murder in the first degree to determine whether the defendant shall be sentenced to death.” CR § 2-303(b) (2002) (repealed 2013). Although the court convened the proceeding, a jury decided the sentence, id. (c), unless the defendant waived a jury. Id. (c)(3); see also Md. Rule 4-343 (prescribing a bifurcated sentencing procedure in capital cases). A separate section, CR § 2-304, defined the sentencing procedure in cases involving life without parole. That section, the one at issue in this case, distinguished cases in which the State only sought life without parole from those in which the State sought death as well, and afforded a sentencing jury only in cases where death was at stake:

(a) In general. — (1) If the State gave notice under § 2-203(1) of this title [to seek life without parole], but did not give notice of intent to seek the death penalty under § 2-202(a)(1) of this title, the court shall conduct a separate sentencing proceeding as soon as practicable after the defendant is found guilty of murder in the first degree to determine whether the defendant shall be sentenced to imprisonment for life without the possibility of parole or to imprisonment for life.
(2) If the State gave notice under both §§ 2-202(a)(l) and 2-203(1) of this title, but the court or jury determines that the death sentence may not be imposed, that court or jury shall determine whether the defendant shall be sentenced to imprisonment for life without the possibility of parole or to imprisonment for life.

CR § 2-304(a) (2010 supp.) (emphasis added).

Put another way, the statute referred to the jury as the sentencing body only in the context of cases in which the State was seeking the death penalty. Otherwise, sentencing was left to the court.

Those were the rules as the case got under way. In response to the State’s Notice of Intent to Seek Death Penalty, and amidst a variety of other pretrial motions, Mr. Bellard filed a motion to strike the Notice that the State opposed. Before the court ruled, though, the General Assembly passed and Governor O’Malley signed Senate Bill 276 (2013 Md. Laws ch. 156), which repealed the death penalty prospectively as of October 1, 2013. The State then withdrew its original Notice and filed a new one, entitled Notice of Intent to Seek Imprisonment for Life Without the Possibility of Parole, pursuant to CR § 2-203. Mr. Bellard responded by filing a Notice of Election to be Tried by Jury and, if Convicted of First Degree Murder, to be Sentenced by Jury. Both parties filed motions to strike the other party’s notices.

The circuit court granted the State’s motion, denied Mr. Bellard’s, and, after he was convicted by the jury, imposed the sentence itself. Again, the relevant statute was CR § 2-304, this time as amended by Senate Bill 276. Its death-sentence counterpart, CR § 2-303, had been stricken altogether in the repeal legislation. Section 2-304 remained — which makes sense, since life without parole was still an available sentence for first-degree murder — without references in subsection (a) to notices of intent to seek the death penalty. But the repeal also left in place, without alteration, subsection (b), which in the pre-repeal version described the findings a jury considering life without parole in a death penalty case was required to make. This evolution of § 2-304 is easier to see in chart form:

This is the disconnect upon which Mr. Bellard attempts to seize. Why, he asks, would the General Assembly leave in the statute the list of findings a jury would be required to make if there was no role for a jury in determining whether to sentence him to life without parole after the death penalty was repealed? In his view, there is no ambiguity: the base sentence for first-degree murder is life imprisonment “[ujnless a sentence of imprisonment for life without the possibility of parole is imposed in compliance with § 2-203 of this subtitle and § 2-304 of this title,” CR § 2-201(b)(2), and the statute defining the sentencing procedure for life without parole describes the findings a jury must make in order for a jury to impose that sentence.

Although the language of subsection (a) seems on its own to commit sentencing to the court — “[i]f the State gave notice under § 2-203(1) of this title, the court shall conduct a separate sentencing proceeding as soon as practicable after the defendant is found guilty of murder in the first degree to determine whether the defendant shall be sentenced to imprisonment for life without the possibility of parole or to imprisonment for life,” CR § 2-304(a) (emphasis added) — -we acknowledge that the continued presence of subsection (b) creates ambiguity. The references to two different potential sentencing bodies permits “two or more reasonable alternative interpretations of the statute.” Stoddard, 395 Md. at 662, 911 A.2d 1245 (quoting Chow v. State, 393 Md. 431, 444, 903 A.2d 388 (2006)). And when a statute can be interpreted in more than one way, “the job of this Court is to resolve that ambiguity in light of the legislative intent, using all the resources and tools of statutory construction at our disposal.” Id. (quoting Chow, 393 Md. at 444, 903 A.2d 388).

But we need not dig deeply into Senate Bill 276 to find its purpose. The bill’s Preamble says in so many words that its purpose was “repealing the death penalty,” and the Fiscal and Policy Note states that the bill “repeals the death penalty and all provisions relating to it.” Fiscal and Policy Note Revised, S.B. 276 Md. at 1. Neither mentions other alterations to the sentencing authority or procedures for first-degree murder, and the provisions of the bill itself simply removed portions of the Maryland Code relating to the death penalty and replaced references to repealed language. This obviously was a complicated task, and details can — and apparently did — get overlooked. But our two alternatives are to acknowledge that subsection (b) of CR § 2-304 has become purely vestigial, or to interpolate an intention on the part of the General Assembly to create jury sentencing rights that previously didn’t exist in non-capital first-degree murder cases. We see nothing in the purpose or language of the legislation itself that suggests any intent to expand jury sentencing to defendants facing life without parole. And although we could have stopped there, we reviewed the legislative history as well, and it too supports a conclusion that the purpose of the legislation was to repeal the death penalty, rather than alter sentencing procedures in non-capital murder cases.

Mr. Bellard points us to the introduction in 2015 of (unsuccessful) legislation purporting to repeal jury sentencing in life without parole eases, and a memorandum to the Standing Committee on Rules of Practice and Procedure by Chairman (and retired Court of Appeals Judge) Alan Wilner, alerting the Committee to a “serious glitch” that he hoped the General Assembly would have solved in the 2015 Session:

[I]n doing away with the death penalty, the General Assembly repealed the sections that provided for the death penalty and deleted references to the death penalty in other sections, including §§ 2-304 and 2-305, but left intact provisions in those two sections at least suggesting, and possibly providing, that a determination of life with or without parole could be made by a jury.

Alan Wilner, Chair, Memorandum to Members of the Court of Appeals of Maryland Standing Committee on Rules of Practice and Procedure, Item 3 on June 18[, 2015] Agenda-Rules 4-342 and 4-343, HB 1135 and SB 849, 2015 Regular Session, at 2-3 (2015) (emphasis added). These developments reinforce our conclusion that some ambiguity remains in CR § 2-304, and it obviously would be cleaner if, ultimately, the statute were amended to address it. But nothing about these candid expressions of uncertainty alters our view of how the General Assembly intended that provision to function in the wake of the repeal, or demonstrates an intention to expand jury sentencing to non-capital first-degree murder cases. Accordingly, and in light of our reading of CR § 2-304, we see no conflict with Rule 4-342, and hold that the State was authorized by CR § 2-203 to serve notice of its intent to seek a sentence of imprisonment for life without the possibility of parole; that, with the possibility of the death penalty removed, Mr. Bellard’s sentencing procedures were governed by CR § 2-304(a) and Rule 4-342; and that Mr. Bellard was not entitled to elect to be sentenced by jury.

Next, and assuming that we didn’t agree with his construction of the statute, Mr. Bellard contends that the sentencing procedures in first-degree murder cases are void for vagueness because they provide no guidelines for the imposition of a sentence of life without the possibility of parole. The State counters that this same issue was previously addressed by the Court of Appeals in Woods v. State, 315 Md. 591, 556 A.2d 236 (1989). In that case, the defendant argued that when “a life sentence without parole is imposed without following the procedures required for a sentence of death, it is unconstitutionally void for vagueness0 as offending due process of law.” Id. at 602-03, 556 A.2d 236 (footnote omitted). He argued as well that without guidelines such as those that are in place for death penalty cases, he would have to “guess at the sentencing procedure if he was convicted of the crime of first degree murder.” Id. at 603, 556 A.2d 236. The Court of Appeals rejected these arguments and held that a sentence of life imprisonment without the possibility of parole could be imposed without a separate sentencing proceeding before a jury. Id. at 608, 556 A.2d 236.

Mr. Bellard argues that “[b]ecause the sentencing scheme at issue in Woods is dramatically different from the statutory scheme that is at issue in the case sub judice, Woods has no bearing on whether the current statute required Appellant to be sentenced by a jury.” He points us instead to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in which the Supreme Court held that any fact (other than the fact of a prior conviction) that increases the penalty for a crime beyond the statutory maximum must be proven beyond a reasonable doubt by a jury. And because, as Mr. Bellard contends, a life without parole sentence is an enhanced sentence, any facts supporting the sentence enhancement must be decided beyond a reasonable doubt by a jury.

This theory falls apart, though, because life imprisonment without parole is not outside the statutory maximum for first-degree murder — it is the statutory maximum. See CR § 2-201. Indeed, Apprendi sought to “be clear that nothing in this history suggests that it is impermissible for judges to exercise discretion — taking into consideration various factors relating both to offense and offender — in imposing a judgment within the range prescribed by statute.” 530 U.S. at 481, 120 S.Ct. 2348 (emphasis in original). In that case, the sentence was illegal because it required proof of a fact, that- is an element of the crime, to increase the penalty, and that fact should have been submitted to a jury and proven beyond a reasonable doubt. Id. at 490, 120 S.Ct. 2348. But the State was not required to prove any particular fact or element to justify a sentence of life without parole rather than life — after October 1, 2013, life imprisonment without the possibility of parole is the maximum sentence for first-degree murder. Ultimately, we see no basis on which to distinguish this case from Woods, and thus no basis on which to find the sentencing procedures at issue unconstitutionally vague.

B. The Trial Court Incorrectly Sentenced Mr. Bellard On More Than One Count Of Conspiracy To Commit Murder.

Second, Mr. Bellard asserts that the trial court erred by sentencing him to more than one count of conspiracy to commit murder because the evidence did not support a finding of more than one conspiracy, because the jury was not instructed to make a determination that Mr. Bellard entered into more than one conspiracy, and because the State did not argue that Mr, Bellard entered into more than one conspiracy. The State agrees, and we concur that the allegations, evidence, and jury instructions support a conviction for one criminal agreement to murder three people, not three separate agreements to murder one person each. Accordingly, we vacate two of the conspiracy convictions and corresponding consecutive life sentences. See Savage v. State, 212 Md.App. 1, 26, 66 A.3d 1049 (2013).

C. The Trial Court Properly Admitted Testimony Of The State’s Expert Witness.

Third, Mr. Bellard argues that the “circuit court erred in failing to strike the State’s expert as a sanction for the State’s belated disclosure.” We review sanctions imposed for discovery violations for abuse of discretion. Rosenberg v. State, 129 Md.App. 221, 259, 741 A.2d 533 (1999). And although Maryland Rule 4-263 gives trial courts the discretion to fashion remedies for discovery violations, id. the Rule does not require the court to take any particular action or any action at all. Thomas v. State, 397 Md. 557, 570, 919 A.2d 49 (2007).

Mr. Bellard moved in limine to exclude the State’s expert witness, Detective James Seger, whom the State proffered to testify regarding cell phone towers and records relating to Mr. Bellard’s cell phone. During the hearing, defense counsel argued that the State’s failure to turn over the name of the expert prejudiced the defense’s preparation:

Having someone from the cell tower is completely different from having a detective testify. We didn’t have their name, CV or anything until last week. And so it’s very difficult to prepare for some expert X, whose name we don’t know, whose qualifications we don’t know, testifying to opinions we don’t know.

The State admitted that it had not disclosed the name of the expert in a timely manner, but explained that it had only just found someone to testify:

[W]e were not in possession of [the name] until we were able to find somebody who would be able to do this, since we were going from a situation of having people with the cell companies to having officers who are now trained to do this.

The State argued as well that Mr. Bellard suffered no prejudice from the late disclosure because the State had disclosed in a letter that an expert would be testifying to the opinions contained in the records. The only thing lacking, the State argued, was the name of the particular person who would be testifying, and this fact alone did not prejudice Mr. Bellard since he had had the contents of the opinions for three years. The State also explained that it had made the witness available for the defense to interview, but counsel had declined that offer.

The trial court initially denied the motion without explanation, but clarified its ruling when Mr. Bellard renewed the motion before Detective Seger testified at trial, finding that Mr. Bellard had notice of the subject matter of the expert’s testimony:

I’m not going to strike his testimony based on that since it is the Court’s belief you’ve had sufficient time and I deduce[ ] that you have previously been given notice of the existence of the subject matter about which he may be expressing an opinion. (T.5.82)

Although we agree with Mr. Bellard that the State violated Rule 4-263 by not providing the expert’s name in a timely manner, we find no abuse of discretion in the trial court’s decision not to strike the expert’s testimony. The purpose of Md. Rule 4-263 is “to prevent a defendant from being surprised and to give a defendant sufficient time to prepare a defense.” Jones v. State, 132 Md.App. 657, 678, 753 A.2d 587 (2000). The trial court found that Mr. Bellard was not prejudiced by the late discovery notice because he had “sufficient time” and had “been given notice of the existence of the subject matter about which he may be expressing an opinion.” And although the late disclosure of the expert’s identity might well have consumed attention close to trial, Mr. Bellard alleges no particular prejudice from the delay. Thus, it fell well within the trial court’s discretion to deny Mr. Bellard’s motion,

D. The Trial Court Properly Admitted Evidence of Prior Bad Acts As Evidence Of Motive.

Fourth, Mr. Bellard contends that the trial court erred by admitting evidence of prior bad acts that “did not fit within the exception for motive,” and “the probative value of the evidence did not outweigh the prejudicial effect.” Although “evidence of a defendant’s prior criminal acts may not be introduced to prove that he is guilty of the offense for which he is on trial,” Straughn v. State, 297 Md. 329, 333, 465 A.2d 1166 (1983), evidence of other crimes may be introduced if it is independently relevant. Id. at 333, 465 A.2d 1166. Maryland Rule 5 — 404(b) provides a non-exhaustive list of alternative bases:

Evidence of other crimes, wrongs, or acts ... is not admissible to prove the character of a person in order to show action in conformity therewith. Such evidence, however, may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident.

When presented with other crimes evidence, the trial court follows the three-step analysis from State v. Faulkner, 314 Md. 630, 552 A.2d 896 (1989). First, the court determines whether the evidence falls into one of the recognized exceptions, such as motive, opportunity, intent, or preparation. This is not a matter of discretion, and we review that categorization de novo. Second, if the evidence falls into a category of exceptions, the court decides by clear and convincing evidence whether the defendant was involved in the prior crime or bad act, and we review that finding for sufficiency of the evidence. Third, the court balances the probative value of the evidence against the danger of unfair prejudice, a determination we review for abuse of discretion. Id. at 634, 552 A.2d 896.

In this case, the State moved in limine to introduce evidence (through detectives and Ms. Gilmer) that during a trip to Maryland to sell marijuana in June 2010, Mr. Bellard had been “ripped off’ by someone connected to Ms. Brooks. The State argued that this evidence met every prong of the Faulkner test: first, it was relevant to show intent and motive; second, it was supported by clear and convincing evidence through three separate statements by Mr. Bellard and Ms. Gilmer; and third, the probative value substantially outweighed any unfair prejudice because there had already been one reference to Mr. Bellard bringing marijuana and guns into Maryland during the August trip. The State argued that the prior theft established the context for Mr. Bellard’s reaction to the missing marijuana this time, and “would clearly help the jury understand why it is he killed them this time.”

The trial court initially reserved its ruling on the evidence. During Detective Stephen Campbell’s testimony, defense counsel renewed his objection, arguing that it should not be admitted as proof of motive. The State reiterated its previous argument, explaining how the evidence met every prong of the Faulkner test. The trial court decided to allow it, noting that any statements made by Mr. Bellard would come in under a hearsay exception, and that “in terms of other crimes exceptions, then the court is making a determination that it may be probative on the issue of motive and that its probative value substantially outweighs the undue prejudice.”

In his brief, Mr. Bellard argues that the evidence failed all three of the Faulkner steps. He argues that this evidence is not properly characterized as motive evidence, that the court’s finding that the evidence “may” show motive didn’t satisfy the standard, and that the unfair prejudice from the “deliberate and repeated introduction by the State of unproven drug trafficking” was highly prejudicial and not necessary to prove motive. We disagree.

First, Mr. Bellard’s prior experience having marijuana stolen from him by someone connected to Ms. Brooks amply explains his motive to shoot her and the people who witnessed the shooting (and who may also have witnessed the theft). Second, Mr. Bellard’s own statement, along with statements by other witnesses regarding Mr. Bellard’s prior trip to Maryland to sell marijuana and being “ripped off’ by someone who was introduced to him by one of the victims, support the trial court’s finding that the prior acts had been proven by clear and convincing evidence. And third, evidence of the prior trip, during which Mr. Bellard’s drugs were stolen, coupled with the evidence that his drugs were taken a second time during the August trip, demonstrates that Mr. Bellard shot and murdered Ms. Brooks because he believed she was responsible for both of the thefts. The probative value of this evidence substantially outweighs any chance of unfair prejudice, particularly since the jury had already heard testimony that Mr. Bellard was a drug dealer and had possessed a gun, and we discern no error in the court’s decision to admit it.

E. The Trial Court Did Not Abuse Its Discretion By Granting The State’s And County’s Motion To Quash The Subpoena Served On The Office Of Information Technology Center And The Prince George’s County Internal Affairs Division.

Fifth, Mr. Bellard contends that the circuit court abused its discretion by granting the State’s and County’s motion to quash the subpoena he served on the County’s Office of Information Technology and the Prince George’s County Police’s Internal Affairs Division seeking emails relating to the investigation of these crimes and the disciplinary records of officers. He argues that the trial “court did not engage in a balancing test of either of the competing interests of Appellant and the party asserting confidentiality. The circuit court, instead, ruled that Brady[:i was the law of Maryland, which was not the appropriate consideration for the requests made by Appellant.” The State counters that the trial court did not abuse its discretion because Mr. “Bellard was not entitled to any investigatory records, i.e., emails related to his case, except those the State was required to disclose under the discovery rules.” We review a decision to issue a protective order for abuse of discretion. Coleman v. State, 321 Md. 586, 583 A.2d 1044 (1991).

Upon motion by a party, the circuit court may quash a subpoena and issue a protective order when “justice requires to protect the party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Md. Rule 4-266(c). When reviewing a defendant’s request for confidential documents, the court “balances competing interests: those of the party holding the protection of confidentiality and those of the defendant who has the right to confront witnesses against him or her.” Fields v. State, 432 Md. 650, 667, 69 A.3d 1104 (2013). First, the defendant must demonstrate a “need to inspect,” which is “a reasonable possibility that review of the records would result in discovery of usable evidence.” Id. at 667, 69 A.3d 1104 (quoting Zaal, 326 Md. at 81, 602 A.2d 1247). The strength of this need to inspect depends upon factors such as “the nature of the charges brought against the defendant, the issue before the court, and the relationship ... between the charges, the information sought, and the likelihood that relevant information will be obtained as a result of reviewing the records.” Id. (quoting Zaal, 326 Md. at 81-82, 602 A.2d 1247). Then, if the court finds that the defendant has established a need to inspect, “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 restriction as the court requires.” Id. (quoting Zaal, 326 Md. at 87, 602 A.2d 1247).

Mr. Bellard argues that the trial court didn’t balance the interests at all. But in its written motion and during the motions hearing, the State detailed the balancing test and argued why Mr. Bellard had not met the initial burden of demonstrating a “need to inspect,” as Zaal required. The State argued that the defense “never identified, as required by the courts, a precise issue that would make this case — that would be relevant to this case. No specific incident.” Defense counsel, on the other hand, argued, “it’s quite clear that the point of the subpoena is to get emails that can be used in this criminal prosecution, that can be used in Mr. Bellard’s own defense.” After hearing both sides, the court agreed with the State. And once the court found that Mr. Bellard did not meet the initial burden of demonstrating a “need to inspect,” the court did not reach the remainder of the balancing test.

Both subpoenas sought broad swaths of investigative and personnel files not normally subject to disclosure, see Faulk v. State’s Attorney, 299 Md. 493, 509-11, 474 A.2d 880 (1984); Blythe v. State, 161 Md.App. 492, 555, 870 A.2d 1246 (2005), and there were genuine issues about whether the subpoenas defined the records with appropriate specificity. Judges are presumed to know and apply the law correctly, State v. Chaney, 375 Md. 168, 181, 825 A.2d 452 (2003), and although the court might have articulated its analysis more explicitly, the transcript reveals that the court fully considered the issues before granting the State’s motions. Moreover, Mr. Bellard offered only general arguments in support of his need for these files, and no reason beyond hope to believe that either set of files would have contained relevant, admissible evidence. We see no abuse of discretion in the court’s decision to quash these subpoenas.

F. The Trial Court Properly Denied Mr. Bellard’s Motion To Suppress.

Mr. Bellard’s final argument, that the trial court erred in denying his motion to supress evidence, has three components: first, that he was illegally seized at the crime scene; second, that he did not voluntarily consent to allow officers to search his car; and third, that the statements he gave were not lawfully obtained. We disagree with all three assertions.

We review a motion to suppress against the facts developed at the motion hearing, Hill v. State, 418 Md. 62, 67 n. 1, 12 A.3d 1193 (2011), viewing the evidence in the light most favorable to the prevailing party, Robinson v. State, 419 Md. 602, 611-12, 19 A.3d 952 (2011), in this case the State. We defer to the motion court’s factual findings and uphold them unless they are clearly erroneous. State v. Luckett, 413 Md. 360, 375 n. 3, 993 A.2d 25 (2010). Whether a confession is voluntary presents a mixed question of law and fact, subject to de novo review. Jones v. State, 173 Md.App. 430, 441-42, 920 A.2d 1 (2007).

1. Mr. Bellard was not seized unlawfully.

The Fourth Amendment, made applicable to the states by the Fourteenth Amendment in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), prohibits the government from conducting unreasonable searches and seizures. A person has been “seized” within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Mere questioning by police does not constitute a seizure and, therefore, does not implicate the Fourth Amendment if a reasonable person in the situation would feel free “to disregard the police and go about his business.” California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).

Mr. Bellard asserts that he was seized illegally at the crime scene because he “was not told that he was free to leave, he was not permitted to go to his vehicle to get cigarettes, and was repeatedly asked to stay at the scene to answer questions.” Whether a reasonable person would feel free to leave an encounter with a police officer depends on the time and place of the encounter, the number of officers present and whether they were uniformed, whether the police removed the person to a different location or isolated him or her from others, whether the person was informed that he or she was free to leave, whether the police indicated that the person was suspected of a crime, whether the police retained the person’s documents, and whether the police exhibited threatening behavior or made physical contact that would suggest to a reasonable person that he or she was not free to leave. Ferris v. State, 355 Md. 356, 377, 735 A.2d 491 (1999).

We agree with the circuit court that, based on the totality of the circumstances, Mr. Bellard was not seized at the crime scene. This was a complex, quadruple-homicide investigation, with numerous officers and several witnesses present at the scene. And although the officers informed Mr. Bellard that he would need to answer some questions and was not allowed to retrieve cigarettes from his vehicle, the exercise of police authority was reasonable under the circumstances. Mr. Bel-lard appeared on the scene voluntarily — remember, he had left after the shootings and returned entirely on his own. He had told the officers that he knew the victims, had spent time with them earlier in the day, and had returned to “check on his friends.” Mr. Bellard presented himself to the police as a possible witness with helpful information and was treated as one. He was cooperative, and voluntarily went to the police station to answer questions. The police exhibited no threatening behavior and in fact allowed him to move freely around the area, unattended and unrestrained.

2. Mr. Bellard consented knowingly and voluntarily to the search of his vehicle.

“For a consensual search to satisfy the Fourth Amendment, it must be voluntary, ie., free of coercion.” Varriale v. State, 444 Md. 400, 412, 119 A.3d 824 (2015) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). The burden of proving voluntariness lies with the State, and depends upon the totality of the circumstances. Mendenhall, 446 U.S. at 557, 100 S.Ct. 1870.

Mr. Bellard asserts that he “was forced to ‘consent’ to the search of the vehicle in order to obtain the colostomy bag that he needed to replace the attached bag that was damaged.” But the facts don’t support that argument. Mr. Bellard was taken to CID at approximately 5:00 a.m. to be questioned. At some point during this questioning, around 7:00 a.m., Mr. Bellard inculpated himself by indicating that he was trafficking marijuana. After that, he was Mirandized, and, shortly thereafter at approximately 9:50 AM, he signed a consent form authorizing the search of his vehicle. There is no mention of a leaky colostomy bag until approximately 1:00 p.m. To the contrary, the officers read the consent form to Mr. Bellard in its entirety and told him that he did not have to consent to the search, and Mr. Bellard stated that he understood the form before he signed it.

3. Mr. Bellard confessed freely and voluntarily.

Mr. Bellard’s final contention, that his statement was not lawfully obtained, rests on two premises: first, that his right to prompt presentment was violated; and second, that his statements were the result of an unlawful promise or benefit.

Only voluntary confessions are admissible as evidence. Hoey v. State, 311 Md. 473, 480-81, 536 A.2d 622 (1998). A confession is voluntary if it is “freely and voluntarily made” and the defendant making the confession “knew and understood what he was saying” at the time he or she said it. Id. To be voluntary, a confession must satisfy the requirements of the U.S. Constitution, the Maryland Constitution and Declaration of Rights, Maryland non-constitutional law, and the United States Supreme Court’s decision in Miranda. Knight v. State, 381 Md. 517, 531-32, 850 A.2d 1179 (2004). When assessing voluntariness, courts look to the totality of the circumstances, Winder v. State, 362 Md. 275, 307, 765 A.2d 97 (2001), including factors such as where the interrogation was conducted; its length; who was present; how it was conducted; its content; whether the defendant was given Miranda warnings; the mental and physical condition of the defendant; when the defendant was taken before a court commissioner following arrest; and whether the defendant was physically mistreated, or physically intimated or psychologically pressured. Perez v. State, 168 Md.App. 248, 268, 896 A.2d 380 (2006) (quoting Hof v. State, 337 Md. 581, 596, 655 A.2d 370 (1995)). “[A] confession is involuntary if it is the product of certain improper threats, promises, or inducements by the police.” Lee v. State, 418 Md. 136, 161, 12 A.3d 1238 (2011). The State has the burden to prove, by a preponderance of the evidence, that the confession was voluntary. Id.

Mr. Bellard argues first that his statement was not obtained lawfully because the State violated his right to prompt presentment. Maryland Rule 4-212(f)(l) requires that upon arrest, a defendant “be taken before a judicial officer of the District Court without unnecessary delay and in no event later than 24 hours after arrest.” Mr. Bellard asserts that once he admitted during questioning to drug activity and possession of a hand gun, he should have been taken before a commissioner and charged. This delay in presentment, he says, should be given “very heavy weight” in determining whether his confession was voluntary.

Mr. Bellard is correct “that any deliberate or unnecessary delay in presenting an accused to a District Court Commissioner, in violation of Rule 4-212(e) or (f) must be given very heavy weight in determining whether a resulting confession is voluntary,” Williams v. State, 375 Md. 404, 453, 825 A.2d 1078 (2003) (emphasis in original) (internal quotations and citations omitted), but the record does not reflect any deliberate or unnecessary delay. The officers were not interested in charging Mr. Bellard in connection with drug crimes: they were investigating a quadruple homicide and thought Mr. Bellard might have important information regarding that case. After Mr. Bellard made the inculpating statements regarding drug trafficking, he was Mirandized, and waived his rights before making any statements about the homicides.

The record supports the trial court’s finding that the Miranda waiver was knowing and voluntary. Mr. Bellard had two years of college education, and Detective Campbell and Mr. Bellard read the waiver form to him out loud together. Mr. Bellard stated that he understood his rights, then signed the waiver form. Moreover, the record reveals no unnecessary delay in bringing Mr. Bellard before a district court commissioner before he signed the waiver. Detectives testified that during the interview Mr. Bellard gave them valuable information about the crime scene and lead them to other potential witnesses. Delaying presentment for these inquires did not violate Mr. Bellard’s right to prompt presentment. Id. at 420, 825 A.2d 1078 (explaining that some delays are necessary, including delays to determine whether a charging document should be issued accusing the arrestee of a crime, and to obtain relevant nontestimonial information likely to be significant in discovering the identity or location of other persons who may be associated with the arrestee in the commission of the offense).

Second, Mr. Bellard contends that his confession was “involuntary and unconstitutionally obtained because the statements were the result of an unlawful promise of a benefit.” Again, the facts established at the suppression hearing paint a different picture.

Under Maryland common law, a statement is involuntary and inadmissible if an accused is told, or it is implied, that making an inculpatory statement will be to his advantage, in that he will be given help or some special consideration, and he makes remarks in reliance on that inducement. Williams v. State, 445 Md. 452, 478, 128 A.3d 30 (2015) (internal quotations and citations omitted). In Winder, the Court of Appeals explained that a confession is involuntary if:

(1) a police officer or an agent of the police force promises or implies to a suspect that he or she will be given special consideration from a prosecuting authority or some other form of assistance in exchange for the suspect’s confession, and (2) the suspect makes a confession in apparent reliance on the police officer’s statement. 362 Md. at 309, 765 A.2d 97.

Both prongs must be satisfied for the confession to be deemed involuntary. Id.

Mr. Bellard claims that Detective Jernigan improperly induced him to confess by telling him that “Ms. Gilmer was implicating him and he needed to think about that,” and that “he needed to get his statement out there first.” At the suppression hearing, Detective Jernigan testified that after being told Ms. Gilmer incriminated Mr. Bellard in the homicide, he had a brief contact with Mr. Bellard and said:

[L]ook, this is what’s being said as far as her pointing the finger in his direction ... I said he needs to kind of think through what he needs to say, and if he wants her to basically give us — whether it be an accurate version or a somewhat glorified version, I said he needs to think about where this is going.

Mr. Bellard contends that Detective Jernigan’s statement implied that the police would believe and act on the statement if Mr. Bellard provided them with information first. But Detective Jernigan made no such promise, nor suggested that Mr. Bellard would receive special treatment if he confessed. Moreover, Mr. Bellard doesn’t contend that Detective Jerni-gan’s statement induced him to confess, and nothing in the record suggests that it did.

Mr. Bellard also claims that Sergeant Anthony Schartner induced him to confess by telling him that the clothing from the scene that Mr. Bellard had previously discarded might assist in proving his innocence. Again, this statement neither promised nor suggested that Mr. Bellard would receive a benefit or special treatment. Mr. Bellard did not testify at the hearing, and as the trial court correctly noted, the failure of a defendant to testify at a suppression hearing when the issue is voluntariness, rather than Miranda compliance, seriously hinders his chances of prevailing. Ashford v. State, 147 Md.App. 1, 56, 807 A.2d 732 (2002).

JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY VACATED AS TO TWO CONVICTIONS AND SENTENCES FOR CONSPIRACY TO COMMIT MURDER AND AFFIRMED IN ALL OTHER RESPECTS. COSTS ASSESSED 22% TO PRINCE GEORGE’S COUNTY AND 78% TO APPELLANT.

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Additional sentences were imposed for the handgun charges, but none of those are challenged on appeal.

      .His brief states the Questions Presented as follows:
      1. Did the circuit court err in failing to strike the Notice of Intent to Seek Sentence of Imprisonment for Life Without Possibility of Parole filed by the State?
      2. Did the trial court err in sentencing Appellant on more than one count of conspiracy to commit murder?
      3. Did the circuit court err in permitting the State to offer the testimony of an expert witness who was not timely disclosed in discovery?
      4. Did the circuit court err in admitting evidence of prior bad acts?
      5. Did the circuit court abuse its discretion when it granted the State’s and the County’s motion to quash the subpoena that was served on the Office of Information Technology Center and the Prince George’s County Internal Affairs Division?
      6. Did the circuit court err in denying Appellant’s motion to suppress?

      . Md. Rule 4-342 is titled "Procedure in non-capital cases” and "applies to all cases except those governed by Rule 4-343,” which governs capital cases.

      . The sentencing proceeding was to be conducted by the same jury that determined the defendant's guilt unless the defendant pled guilty or was convicted in a bench trial, or if the court discharged the jury for good cause. Id. (c)(1) — (2).

      . CR § 2-203 provides the procedure through which the State may seek a life without parole sentence in first-degree murder cases:
      A defendant found guilty of murder in the first degree may be sentenced to imprisonment for life without the possibility of parole only if:
      (1) at least 30 days before trial, the State gave written notice to the defendant of the State’s intention to seek a sentence of imprisonment for life without the possibility of parole; and
      (2) the sentence of imprisonment for life without the possibility of parole is imposed in accordance with § 2-304 of this title.

      . The Committee was considering repealing Md, Rule 4-343 and amending Md. Rule 4-342, but to date has not acted on either.

      . We disagree with Mr. Bellard's contention, citing Duckett v. Riley, 428 Md. 471, 476-77, 52 A.3d 84 (2012), that we review this decision de novo. That case had required the circuit court to interpret the meaning of the word "paper” as used in Md. Rule 2-325(a), id. at 476, 52 A.3d 84, a statutory construction issue that we don’t have here.

      . In arguing that the evidence does not fall under the motive exception, Mr. Bellard points us to Vitek v. State, 295 Md. 35, 453 A.2d 514 (1982). Mr. Bellard argues that here, as in Vitek, there was a perfectly obvious motive for the crime: "Appellant had left drugs in the apartment of Dawn Brooks. When they returned to the apartment and the drugs had been stolen, Appellant was angry and allegedly killed all of the people who saw him shoot Dawn in an attempt to find out who had taken his drugs. The fact that Appellant previously brought drugs to Maryland and those drugs had been stolen was ‘not probative of the proposition at which it is directed’ — that Appellant had a motive. Id. It was therefore, irrelevant.” This argument proves the point, though, and distinguishes Vitek, in which the attenuated connection between the defendant’s financial status and his motive to commit a crime created, at most, a generalized motive. Id. at 40, 453 A.2d 514.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).