Green v. State, 149 A.3d 1159

On Oct. 23, 2013, Jeff Meyers was shot and killed while sitting in his truck; John W. Green III (appellant) and Jonathan Copeland were present. Appellant admitted being at the scene; the identity of the shooter was disputed.
Doris Carter drove by and observed two men by a Mustang: a "tall and thin" man wearing a hat and a "short, stouter" male; she testified she saw the short stocky person shoot into Meyers’ truck.
At trial the State asked Carter if she could identify the taller thinner man; after a bench conference the court permitted an in-court “show up” and Carter identified Copeland as the taller thin man wearing the hat.
Appellant argued on appeal that the in-court identification violated the State’s discovery obligations under Md. Rule 4-263 (pretrial identification disclosure), claiming surprise and prejudice.
Appellant also challenged the trial court’s decision to allow the State to replay portions of jail-call recordings during rebuttal closing argument (the recordings had been played for the jury earlier but the physical CDs were not admitted as exhibits).
The Court of Special Appeals affirmed: it limited review of the discovery claim to Rule 4-263(d)(7) (pretrial identification of the defendant), held that rule covers only identifications of "the defendant," and concluded no error in permitting Carter’s in-court identification of Copeland; it also held replaying prior-recorded testimony in closing was within the trial court’s discretion.

Issue	Appellant's Argument	State's Argument	Held
Whether Carter’s in-court identification of Copeland violated Rule 4-263 discovery obligations (pretrial ID disclosure)	The State failed to disclose Carter’s pretrial recognition/identification of Copeland (including photographic recognition/newspaper photo), creating unfair surprise that warranted exclusion	Rule 4-263(d)(7) requires disclosure only of pretrial identifications of "the defendant." Copeland was a co-defendant; disclosure of identifications of third parties is not required; cross-examination cures any prejudice	The court held Rule 4-263(d)(7) applies to identification of "the defendant" only; Carter’s ID of Copeland did not trigger that rule, and admission was not error; preservation limited the appellate issues considered
Whether the trial court erred in allowing the State to replay portions of previously played jail-call recordings during rebuttal closing argument	Replaying the recordings (CDs not admitted as exhibits) during closing was equivalent to introducing evidence out of order and was improper	The content of the recordings had already been heard by the jury and thus were part of the evidence; replaying excerpts in argument is analogous to reading admitted testimony or a transcript and is within the court’s discretion	The court held it was not an abuse of discretion to permit limited replay of recordings heard at trial during closing; counsel may repeat evidence already presented (one replay, limited)

Williams v. State, 364 Md. 160 (2001) (discusses mandatory discovery obligations and remedy framework for Rule 4-263 violations)
Johnson v. State, 360 Md. 250 (2000) (interpretation of discovery rule text and effect of plain language)
Norton v. State, 217 Md. App. 388 (2014) (contemporaneous objection not required immediately after denial of motion in limine where testimony follows shortly thereafter)
Clemons v. State, 392 Md. 339 (2006) (discusses preservation and form-v-substance in objections following in limine rulings)
Simons v. State, 159 Md. App. 562 (2004) (pretrial statement placing a defendant at the scene can constitute an identification under discovery rules)
United States v. Muhlenbruch, 634 F.3d 987 (8th Cir. 2011) (replaying videotaped evidence during closing was within trial court discretion)