John W. GREEN, III v. STATE of Maryland
No. 4, Sept. Term, 2017
Court of Appeals of Maryland.
October 20, 2017
171 A.3d 1162
97
Argued by Edward J. Kelley, Assistant Attorney General (Gary E. O‘Connor, Assistant Attorney General and Brian E. Frosh, Attorney General of Maryland, Baltimore, MD), on brief, for Respondent.
Argued before: Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.
Watts, J.
“Whether a witness can positively identify the [defendant] at the scene of the crime is often the cardinal facet of a determination of guilt.” Williams v. State, 364 Md. 160, 179, 771 A.2d 1082, 1093 (2001). In other words, “[i]dentification testimony may be outcome determinative[.]” Id. at 174, 771 A.2d at 1090. “[H]ence, any solid preparation of a defense demands this information.” Id. at 174, 771 A.2d at 1090.
During discovery in a criminal case in a circuit court,
Here, we are asked to decide whether
At trial, the State, Respondent, offered evidence of the following theory of the case. John W. Green, III (“Green“), Petitioner, was friends with Jonathan Copeland (“Copeland“),
Green was the only defendant when the case proceeded to trial. Copeland had been charged with the same offenses with respect to Myers. Copeland, however, pled guilty to first-degree murder and conspiracy to commit first-degree murder.
The State‘s sole eyewitness to the shooting was Doris Carter (“Carter“). Carter saw two men with Myers at the scene of the shooting. Carter was unable to see the shooter‘s face because he was wearing a hoodie. Carter, however, saw the face of the person who was not the shooter.
At trial in the Circuit Court for Cecil County (“the circuit court“), during Carter‘s direct-examination, the prosecutor proffered that Carter would identify Copeland as the person who was not the shooter. Green‘s counsel objected on the ground that the State had not disclosed Carter‘s identification of Copeland during discovery. The circuit court permitted Carter to identify Copeland. Copeland was briefly brought into the courtroom, and Carter identified him as the person who did not do the shooting.
Before us, Green contends that the circuit court erred in permitting Carter to identify Copeland for two alternative reasons. First, Green argues that
In Part I, we hold that, as a general matter,
BACKGROUND
Charges, Writ of Habeas Corpus, and State‘s Opening Statement
On November 13, 2013, Green was indicted for first-degree murder, second-degree murder, conspiracy with Copeland to commit first-degree murder, use of a firearm in the commission of a felony or crime of violence, possession of a firearm after conviction of a disqualifying crime, and wearing, carrying, or transporting a handgun.
On November 18, 2014, prior to trial, the State filed a Request for Writ in the circuit court, asking that “a writ be issued to” Copeland. (Emphasis omitted). The Request for Writ did not state its purpose. On November 28, 2014, the circuit court issued to Copeland a Writ of Habeas Corpus Ad Testificandum/Prosequendum for each day from December 9
After a jury was selected, but before opening statements, the prosecutor informed the circuit court that the State intended to call Carter as a witness. The prosecutor advised that he wanted Copeland to appear in the courtroom during Carter‘s testimony so that she could identify him. Green‘s counsel stated: “I very well might object to that. This is the first time [that] I‘ve heard that this is going to happen.”
During the State‘s opening statement, the prosecutor addressed Carter‘s identification of Copeland as follows:
You‘re going to hear a witness who drove by the shooting and saw a very distinct hat and then saw the shooting actually take place in her side-view mirror.
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[Y]ou have one eyewitness putting two people, one which will be very clearly identified as [ ] Copeland and one that loosely identifies as [ ] Green, at the scene of the shooting, and that the trigger man is the one loosely identified by size, shape[,] and stature as [ ] Green, and you connect all the other things that you hear—I‘m not going to lay out every piece you‘re going to hear.
Carter‘s Testimony
At trial, as a witness for the State, Carter testified that, on October 23, 2013, she was driving north on Principio Road in Cecil County. Carter saw two parked vehicles facing each other. One vehicle was a truck, and the other was a dark Ford Mustang. Two men were nearby. One man was standing off to the side of the road. That man was shorter and stouter than the other one, and was wearing a hoodie. The other man was standing near the Mustang‘s driver‘s seat, with one foot in the Mustang and the other foot on the ground. That man was tall and thin, and was wearing a black hat with what appeared to be white snowflakes. During Carter‘s testimony, the State showed her a hat. Carter identified the hat as the one that she
Carter testified that she heard a gunshot. She looked into her driver‘s side-view mirror and saw the shorter, stouter man shoot into the truck three times. Carter could not see the face of the shorter, stouter man—i.e., the shooter—because his hood was up. Carter, however, got a look at the face of the tall, thin man—i.e., the person who was not the shooter—and drove away. Afterward, Carter decided to return to the scene of the shooting so that she could find out the address. Within two or three minutes, Carter drove back to the scene. On her way, she did not see the Mustang. By the time that Carter returned to the scene, the Mustang was gone.
One or two days after the shooting, Carter provided a statement to detectives in her home. Within a week, detectives interviewed Carter at a police station.
On direct-examination, the following exchange occurred with regard to Carter‘s ability to identify the two men:
[PROSECUTOR: W]hen you first met with detectives, do you remember what you told them in terms of whether you got a good look at faces or not?
[CARTER:] You know, at first I didn‘t want to get anything wrong. I just wanted to say exactly what I knew that I saw. And as those memories started coming back, it was after I talked to them.
[PROSECUTOR:] So when you first met the detectives what did you say in terms of—
[CARTER:] I think I told them that I couldn‘t—I could tell you how—like one was tall and thin and the other one was short and stout, and that the one was wearing a hat. Then I think I might have said that one was a white male, but I‘m not even sure.
[PROSECUTOR:] All right. As time has gone by though, as you sit—again, as you sit here right now, do you have an image of what the taller skinnier one, as you described him, next to the driver‘s door looked like?
[CARTER:] Yes.
[PROSECUTOR:] And if he was presented to you do you believe that you could identify him?
[CARTER:] I think so.
While Carter was still on the stand, at a bench conference, the prosecutor stated:
[T]his was the reason for the writ for [ ] Copeland—noting, of course, that [Green] is not charged merely with first[-]degree murder[ ], he is also charged with conspiracy to commit first[-]degree murder. He‘s charged specifically conspiracy with [ ] Copeland. It is the [S]tate‘s proffer to the court that we believe that [ ] Carter, upon seeing [ ] Copeland, will be able to positively identify him.
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We ... intend to have [ ] Carter specifically identify [ ] Copeland either by face, and say, yes, that‘s him, or that looks like him or whatever she says, then ask her about the physique, whether that‘s consistent with the first or the second person or anything to that effect.
(Emphasis added) (paragraph break omitted).
Green‘s counsel objected, stating: “[N]owhere in any discovery has anyone told me that a witness is going to identify a co-defendant[.]” Green‘s counsel stated: “[W]ithout giving notice, [Carter]‘s going to identify [Copeland.] ... [S]urprise, surprise, she‘s identifying the co-defendant.” Green‘s counsel contended that the State had been obligated to disclose during discovery that a witness had been expected to identify Copeland.
In response, the prosecutor stated, among other things: “[C]ivilian witnesses[,] every day[,] get on the stand and say things ... for the first time. They say things different and supplemental, additional to what they said during the interview process[.]” The prosecutor did not, however, contend that he had just learned that Carter could identify Copeland, or that he was surprised to discover that Carter could identify Copeland. The prosecutor stated that Green‘s counsel‘s
(Paragraph break omitted).
The prosecutor neither disputed that there had been a pretrial identification of Copeland by Carter, nor denied that Copeland had informed law enforcement officers pretrial of her ability to identify Copeland as the person who was not the shooter. Instead, the prosecutor contended that
Without expressly determining whether there had been a discovery violation, the circuit court stated that it would allow Carter to identify Copeland. Copeland was brought in the courtroom, briefly stood there, and was excused. Carter identified Copeland as the tall, thin man who had been wearing a hat and standing near the Mustang‘s driver‘s side. In other words, Carter identified Copeland as the person who did not perform the shooting.
On cross-examination, the following exchanges occurred with regard to the statement that Carter had provided to detectives in her home one or two days after the shooting:
[GREEN‘S COUNSEL:] Do you remember what you told [the detectives] the first time?
[CARTER:] Pretty much what I said here except for I‘m sure—like I said, it‘s been a year, and after that[,] I just didn‘t contact them to tell them anything else.
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[GREEN‘S COUNSEL:] Is it fair to say [that] the detectives asked you if you could identify [the shooter]?
[CARTER:] I‘m sure [that] they did. That was—believe me, I was so nervous after all this. I was traumatized. I have to say [that] I was traumatized because I didn‘t sleep. I just kept thinking about it over and over again. I couldn‘t believe that I saw what I saw.
[GREEN‘S COUNSEL:] But two days later[,] they asked if you could identify either of these people.
[CARTER:] Yeah. I‘m sure they asked me if I knew what they were wearing, and I said the hat and the height and as much of a description—
[GREEN‘S COUNSEL:] Did you give them an idea—two days after the interview you said short and stocky; or did you give an idea of height or just a general description?
[CARTER:] Just that, short and stocky.
On cross-examination, the following exchanges occurred regarding the detectives’ interview of Carter at the police station within a week after she provided the statement to detectives in her home:
[GREEN‘S COUNSEL:] Is it fair to say [that,] in that interview[,] you told the detectives that you didn‘t really get a very good look at these people as you drove by because you were worried about their vehicle in the road?
[CARTER:] Right.
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[GREEN‘S COUNSEL:] And they asked you once again for descriptions of these people beyond what you‘ve testified to, and you were unable, even a week after this happened, to give any further description, is that fair?
[CARTER:] That‘s fair.
[GREEN‘S COUNSEL:] Have you seen a tape of your interview?
[CARTER:] Yes.
[GREEN‘S COUNSEL:] So me asking you that, you‘ve seen it?
[CARTER:] I‘ve seen it.
[GREEN‘S COUNSEL:] You know what‘s on there.
[CARTER:] Right. I do know what‘s on there. It‘s just that memories start coming back after I talked to them, and I didn‘t talk to them until now. I‘m just telling you what I saw that day and what I remember [that] I saw that day.
The following exchange occurred pertaining to Carter‘s ability to identify Copeland:
[GREEN‘S COUNSEL: Y]ou just identified the person who came in. Have you ever been shown a photo of him before?
[CARTER:] Just[,] I identified him through just like his eyes and the hat, and not because of, you know, what he was wearing today or anything like that. I remember [that] he looked at me and I looked at him as I was going by because he was right there.
[GREEN‘S COUNSEL:] Have you seen his picture in the newspaper or anywhere since this happened?
[CARTER:] Yes, yes, in the Cecil Daily.
[GREEN‘S COUNSEL:] Oh.
[CARTER:] But I knew [that] when saw [sic] that, that was the person driving the car—or standing outside that driver‘s door. The other person I‘d saw in the paper also, and I didn‘t know them at all.
[GREEN‘S COUNSEL:] When you—since—when was the first time that you realized, seeing a picture, that you knew who that person was?
[CARTER:] When I saw it probably in the paper. I said, oh, wow, that‘s the guy [who] was wearing the hat, that‘s the guy [who] was standing outside the door.
[GREEN‘S COUNSEL:] So like a year ago?
[CARTER:] Yes, probably a little—no, I don‘t know if it was a year ago because it wasn‘t in the paper—I‘m not sure. I‘m not sure when they put it in the paper.
[GREEN‘S COUNSEL:] But sometime after this case and people were charged—
[CARTER:] Yes.
[GREEN‘S COUNSEL:] (Continuing)—you saw a picture of [ ] Copeland, and you—
[CARTER:] And I knew that—
[GREEN‘S COUNSEL:] And you knew [that] it was him?
[CARTER:] But I didn‘t plan on like being here today. I didn‘t want to be here today.
[GREEN‘S COUNSEL:] Did you ever call anyone, inform anyone that —
[CARTER:] No.
[GREEN‘S COUNSEL:] Okay. When did you eventually tell any of the detectives that you knew who [ ] Copeland was?
[CARTER:] When I went over—over everything again with them, what I saw—everything that I saw that day.
Testimony of Other State‘s Witnesses
Including Carter, the State called thirty witnesses. For brevity‘s sake, we will refrain from discussing the testimony of all of the State‘s witnesses and summarize the testimony of those witnesses who provided relevant information concerning Myers, Copeland, and Green, and evidence of the crime.
Randy Smith (“Smith“) testified that, in October 2013, Copeland was renting a house from him. On October 21, 2013, Copeland told Smith that Myers had broken into his house and stolen cash. According to Smith, Copeland seemed “very upset.”
David Gordon (“Gordon“) testified that, on October 21, 2013, he was spending time with Copeland. Copeland got a telephone call about an alarm in his residence going off. Gordon and Copeland went to Copeland‘s residence, and Copeland went inside. Afterward, Copeland came back outside looking mad, and said that “stuff” had been stolen. Gordon and Copeland went to Myers‘s residence, and went inside. Copeland told Myers that cash and drugs were missing. Gordon and Copeland left Myers‘s residence, then picked up Green. Gordon, Copeland, and Green went to Myers‘s residence.
Dawn Watson (“Watson“), Myers‘s girlfriend, testified that, in October 2013, she lived with Myers in his parents’ basement. At the time, Myers was using heroin. According to Watson, Copeland was Myers‘s heroin dealer. Watson testified that, on October 21, 2013, she and Myers were at home. Suddenly, the back door opened, and Copeland and another man appeared. Copeland told Myers that someone had broken into his residence. Copeland and the other man left Myers‘s residence. According to Watson, Copeland texted Myers, stating: “If my stuff is not in the back of your truck when I get there[,] somebody is going to get shot.” Approximately half-an-hour after Copeland and the other man left Myers‘s residence, Copeland, Green, and the other man came to Myers‘s residence in Copeland‘s black Mustang. Watson knew Green because Myers had previously introduced him to her. At the time, Green had a full beard. Myers and his father went outside. Copeland spoke in a loud voice, but Watson could not make out what he was saying. The next day, on October 22, 2013, Green telephoned or texted Myers, warning him that people were looking for him.
Myers‘s mother, Rebecca Myers, testified that, on October 21, 2013, when she came home from work, she saw Copeland‘s black Mustang parked near her residence. Myers, his father, Copeland, Green, and another man were standing outside. Copeland accused Myers of burglarizing his residence. Myers threw his hands in the air and said: “I wasn‘t there. I didn‘t do anything.” Myers‘s father told Copeland to get off their property. Copeland, Green, and the other man left in Copeland‘s Mustang.
Myers‘s father testified that, in October 2013, he, Myers‘s mother, Myers, and Watson lived on Principio Road in Port Deposit. On October 21, 2013, at approximately 3:15 p.m. or 3:30 p.m., Myers‘s father arrived home from work, and en-
Myers‘s father testified that, two days later, on October 23, 2013, at approximately 3:15 p.m. or 3:30 p.m., he came home from work. Myers was in the basement. At approximately 4:30 p.m., Myers‘s mother came home from work. Afterward, Myers‘s father heard a door slam. Later, Thomas Miller (“Miller“), a neighbor, telephoned Myers‘s father and said that something had happened to Myers. Myers‘s parents went outside. Myers‘s truck was at the end of the driveway, and Myers‘s body was in the driver‘s seat.
Michael Owens (“Owens“) testified that, in October 2013, Copeland was his heroin dealer. At the time, Owens used one or two “bundles” of heroin each day. In September and October 2013, Owens owned approximately eight guns. One of Owens‘s guns was a .40 caliber Kahr handgun. Sometime before October 21, 2013, Copeland said that he wanted the handgun, and offered to either buy it or trade drugs for it. On October 21, 2013, Copeland told Owens that someone had broken into his residence. Copeland said that he wanted to obtain the handgun for self-defense in case another break-in occurred.
Owens testified that, the next day, on October 22, 2013, Owens went to Copeland‘s residence and saw Copeland,
Owens testified that, in March 2014, Detective Chris Lewis contacted him. Owens gave Detective Lewis two spent shell casings that had been ejected from the handgun when he had fired it twice sometime in 2013. During Owens‘s testimony, the circuit court admitted the shell casings into evidence.
Jessie Campbell (“Campbell“), a forensic scientist of the Firearms and Tool Marks Unit of the Forensic Sciences Division of the Maryland State Police, was accepted as an expert in firearm and tool mark examination. Campbell compared the shell casings that Owens had given Detective Lewis to four shell casings that had been found at the scene of the shooting. Campbell concluded that all six shell casings had been fired from the same gun.
Richard Bell, Jr. (“Bell“) testified that, on October 23, 2013, he telephoned Copeland to ask to buy marijuana. At approximately 4 p.m., Copeland and Howell, his cousin, came to Bell‘s residence in Copeland‘s black Mustang. Copeland and Howell stayed at Bell‘s residence for approximately ten minutes. Copeland told Bell that Myers had broken into his residence two days earlier. Copeland “looked pretty mad,” and had something that “looked like a gun.”
Jessica Peacock (“Peacock“) testified that, in October 2013, she was dating Green. On October 23, 2013, at approximately 4:30 p.m., Green met Peacock outside the residence of one of her friends. Green told Peacock: “Something bad might happen.” Afterward, Green left. At approximately 6:00 p.m., Peacock returned to her residence. At approximately 6:30 p.m., Green was dropped off at Peacock‘s residence. Green told Peacock that someone had been shot. Green told Peacock that he had been present at the scene of the shooting, but that he did not do it.
Gwen Wisniewski (“Wisniewski“) testified that, on October 23, 2013, she was driving on Principio Road, in the area of its
Miller—the neighbor whom Myers‘s father had mentioned—testified that he lived on Principio Road, approximately one or two acres away from the Myerses’ residence. On October 23, 2013, at approximately 4:45 p.m., Miller saw a black Mustang blocking Myers‘s truck in the driveway. A man with a long, reddish beard was standing near Myers‘s truck. A tall man with black hair was walking around the Mustang. Miller heard loud voices, but could not make out what was being said. Miller went into his garage. One or two minutes later, Miller heard two gunshots. Miller left his garage and saw the Mustang speeding away. Miller went to Myers‘s truck and saw that Myers had been shot.
Deputy First Class Ross Griffin of the Cecil County Sheriff‘s Office testified that he lived approximately a quarter of a mile away from Myers‘s residence. On October 23, 2013, while Deputy First Class Griffin was at home, he heard two gunshots. After a pause, he heard two more gunshots. Approximately one or two minutes later, a black Mustang with two occupants went down Principio Road. The passenger had a larger build than the driver, and was wearing a dark coat or jacket.
James Finn (“Finn“), a paramedic with the Cecil County Department of Emergency Services, testified that, on October 23, 2013, at 4:56 p.m., he was dispatched to Principio Road. At 5:02 p.m., he arrived. There was a truck parked in the driveway. Inside the truck was an unresponsive man with a bullet wound. The man was pronounced dead on the scene.
James Locke, M.D. (“Dr. Locke“), a medical examiner of the Office of the Chief Medical Examiner, was accepted as an expert in forensic pathology. Dr. Locke testified that, on October 24, 2013, he autopsied Myers‘s body. The cause of death was multiple gunshot wounds. Myers had four gunshot
Stephanie Peterson (“Peterson“), a crime scene technician of the Cecil County Sheriff‘s Office, testified that, on October 23, 2013, at approximately 9:20 p.m., she arrived at Principio Road. Peterson recovered one cartridge and four cartridge casings from the scene. Peterson recovered from Myers‘s body 132 baggies that contained suspected heroin. In the basement of Myers‘s residence, Peterson saw pills, suspected marijuana seeds, suspected drug paraphernalia, and a “Suboxone strip,” which is used to treat drug addiction.
Deputy First Class Jonathan Pruett of the Cecil County Sheriff‘s Office testified that, on October 23, 2013, he assisted in Copeland‘s arrest at an M & T Bank in Colora, Maryland. A person named Eddie Haskins (“Haskins“) was the only person who was with Copeland at the time of his arrest. Deputy First Class Pruett performed a search incident to arrest, and found two bundles, or approximately twenty-six bags, of heroin, as well as a cell phone on Copeland‘s person.
Detective William Sewell of the Criminal Investigation Division of the Cecil County Sheriff‘s Office testified that he obtained records for Copeland‘s and Green‘s cell phones. Detective Sewell had those records sent to Detective Jordan Swonger of the Prince George‘s County Police Department.
Detective Swonger was accepted as an expert in the fields of cell phones and cell phone technology. Detective Swonger testified that he had performed an analysis of the records for Copeland‘s and Green‘s cell phones. Detective Swonger prepared a Cellular Analysis Report for Copeland‘s cell phone, and another Cellular Analysis Report for Green‘s cell phone. Detective Swonger also created a map showing the cell towers to which Copeland‘s and Green‘s cell phones connected between 4:46 p.m. and 5:46 p.m. on October 23, 2013. The circuit court admitted the Cellular Analysis Reports and the maps into evidence.
On October 23, 2013, at 4:46 p.m., Copeland‘s cell phone connected to a cell tower in the general vicinity of Myers‘s
Detective Matt Blailock of the Criminal Investigation Division of the Cecil County Sheriff‘s Office testified that he reviewed surveillance videos as part of the homicide investigation. At the time, Copeland‘s Mustang was in the Sheriff‘s Office‘s possession. Detective Blailock was able to identify Copeland‘s Mustang in surveillance videos because it had after-market rims or wheels, blinkers on the side-view mirrors, and a stripe on the side. Additionally, stickers and an E-ZPass transmitter tag1 were attached to Copeland‘s Mustang‘s windows. According to Detective Blailock, surveillance videos showed that, on October 23, 2013, sometime after 4 p.m., Copeland‘s Mustang traveled on Theodore Road, then turned onto Camp Meeting Ground Road. At 4:55 p.m., Copeland‘s Mustang traveled through the parking lot of a Landhope Farms gas station, and left onto Maryland Route 276. At 5:14 p.m., Copeland‘s Mustang went east through the toll booth on Interstate 95 that is near the Maryland-Delaware border. Detective Blailock viewed a surveillance video from a camera outside a Pathmark store in Delaware. On October 23, 2013, at 5:46 p.m., Copeland and Green were walking together outside of the store.
Detective Blailock testified that he helped execute a search warrant for Green‘s residence. Detective Blailock found a hat
Julie Kempton (“Kempton“), a forensic scientist of the Biology Unit of the Forensic Sciences Division of the Maryland State Police,2 testified that she had received a hat and oral swabs from Green and Copeland. Kempton found skin cells on the hat. There were two contributors to the DNA in the skin cells—one major, and one minor. The major contributor‘s profile matched Green‘s profile. Kempton excluded Copeland as the minor contributor.
Detective Lewis of the Criminal Investigation Division of the Cecil County Sheriff‘s Office testified that, on October 24 or 25, 2013, he and Detective Sewell interviewed Carter at her residence. On October 25, 2013, Detective Lewis prepared a statement of charges against Green. According to the statement of charges, Carter said that the shooter was a short, stocky person who was wearing a hat with snowflakes.
Detective Lewis testified that, when they were arrested and booked, Green was approximately 5‘7” and 190 pounds, and Copeland was approximately 5‘11” and 160 pounds. On October 25, 2013, Detective Lewis interviewed Green. Detective Lewis advised Green of his Miranda rights,3 which he waived. Green told Detective Lewis that he had never been with Copeland on October 23, 2013. Green acknowledged, however,
Motion for Judgment of Acquittal and Green‘s Testimony
At the conclusion of the State‘s case, Green‘s counsel made a motion for judgment of acquittal, which the circuit court granted only as to the charge for possession of a firearm after conviction of a disqualifying crime.
As the only witness on his own behalf, Green testified that he had known Myers for fifteen years. According to Green, he and Myers “were all right” and “got high together.” On October 22, 2013, Green telephoned Myers and told him “to watch out, that people were looking for him[.]” Green told Myers that, if he had stolen cash or drugs, he should give them back.
Green testified that on October 23, 2013, Copeland telephoned him and said that he was going to pick him up and drive to Myers‘s residence. Copeland said that he wanted to talk to Myers about “taking [his] s[***].” Copeland picked up Green in his Mustang. Green acknowledged that, at the time, he was wearing the hat that had been admitted into evidence.
According to Green, Copeland drove to Myers‘s driveway and parked in front of his truck. Myers told Copeland and Green to leave, and threatened to call the police. Myers and Copeland started arguing about the “dope” that had gone missing. Myers told Copeland to move his Mustang because Myers‘s truck was blocked in. Green testified that while Myers was in his truck, Copeland pulled out a gun and shot Myers. Green acknowledged that no one else was present at the time.
According to Green, Copeland drove his Mustang to Delaware, with Green as a passenger. Eventually, Copeland drove to an open-air drug market, and left his Mustang to buy drugs. When Copeland left his Mustang, he had his gun, but when he returned, the gun was gone. Copeland drove down Interstate 95. Eventually, due to car trouble, Copeland parked and telephoned Haskins to ask for help. Haskins picked up Copeland and Green.
State‘s Closing Argument
During the State‘s closing argument, the prosecutor addressed Carter‘s identification of Copeland as follows:
Passers[ ]by and neighbors saw the two people outside the Mustang. One taller. One skinnier. I‘m sorry. One taller and skinnier and the other was shorter and stockier. And [ ] Miller, the neighbor, and [ ] Carter, the passer[ ]by, both said without reservation, no ambiguity, no cross[ ]examination that got them tongue[-]tied or twisted or slightly confused, no question in their minds that the shorter[,] stocky guy was the one at the side of [Myers]‘s truck. [ ] Miller distinctly remembered a bushy beard on the shorter[,] stockier man. And [ ] Copeland [was] positively identified by [ ] Carter, you saw him, he stood right here, she sat right there, he left the room, she said [that] that was the guy. Not just the guy. That was the guy standing at the side of the Mustang. That is one key piece of evidence. So [ ] Copeland was positively identified by [ ] Carter as being the man next to his Mustang at the time of the shooting. He is distinctly—you have seen them both. He is distinctly the taller[,] skinnier guy as compared to [ ] Green. [ ] Green himself says [that] he doesn‘t drive, yet he wants you to believe that he, not Copeland, was the person at the driver‘s side of the door when [ ] Carter drove by. You know [that] that makes no sense. He was the passenger. He said, “I don‘t drive.” You heard that in a statement to the detectives during their interview and you heard that in his testimony here. He doesn‘t drive. But for convenience sake [sic] of this story he concocted, he wants you to believe that roles were reversed, he got out of the car and just meandered over to the driver‘s side while [ ] Copeland was the one who went and executed [ ] Myers.
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[ ] Wisniewski and [ ] Carter happened to drive by as this thing was all just going down. Think about the timeframe here, ladies and gentlemen. Think about this. They have got two guys there. Carter definitively, definitively, she is as neutral as you can get, she‘s a passer[ ]by who you could tell, maybe not as much as [ ] Peacock, but you could tell she didn‘t want to be here either. I mean, who would want to be here and testifying in circumstances like this? But she gets on the stand[,] and she says without reservation, that man, [ ] Copeland, was the man standing at the side. This is all important because of the amount of time, the speed by which this happened.
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Green, by his own admission[,] and as supported by other evidence, was, in fact, at the crime scene. The shooter was
Verdicts and Opinion of the Court of Special Appeals
The jury found Green guilty of first-degree murder, conspiracy with Copeland to commit first-degree murder, use of a firearm in the commission of a felony or crime of violence, and wearing, carrying, or transporting a handgun. Green noted an appeal.
The Court of Special Appeals affirmed the convictions. See Green v. State, 231 Md.App. 53, 56, 149 A.3d 1159, 1161 (2016). The Court of Special Appeals held “that the State‘s discovery obligations pursuant to [Maryland] Rule 4-263(d)(7)[(B) ] are limited to that set forth by the plain language of the rule, i.e., information regarding ‘pretrial identification of the defendant by a State‘s witness.‘” Id. at 74, 149 A.3d at 1171. In other words, the Court concluded that
The Court concluded that Green had supplied “no persuasive authority” indicating that
Petition for a Writ of Certiorari
Green petitioned for a writ of certiorari, raising the following two issues:
- Does
Maryland Rule 4-263(d)(7)(B) , which requires the State to disclose “[a]ll relevant material or information regarding ... pretrial identification of the defendant by a State‘s witness,” require the State to disclose all relevant material or information regarding pretrial identification of a co-defendant by a State‘s witness? - Where [Green] and another individual, [ ] Copeland, who pled guilty to first[-]degree murder and conspiracy to commit first[-]degree murder in the shooting death of the victim in [Green]‘s case, were both present at the scene of the shooting, and the eyewitness identification of Copeland as the [person who was not the shooter] implicated [Green] as the person who shot and killed the victim, did the Court of Special Appeals err in holding that information regarding the identification of Copeland did not fall within the scope of “relevant material or information regarding ... pretrial identification of the defendant by a State‘s witness,” under [Maryland] Rule 4-263(d)(7)(B)?
(Ellipses and first alteration in original). This Court granted the petition. See Green v. State, 452 Md. 4, 155 A.3d 891 (2017).
DISCUSSION
I. Pretrial Identification of Co-Defendants
The Parties’ Contentions
Green contends that, as a general matter,
Green maintains that
Green asserts that, even if
The State responds that
The State acknowledges that the purposes of
The State contends that
The State contends that Maryland case law does not support the position that the pretrial identification of a co-defendant is required to be disclosed under
Standard of Review
Where, as here, a trial court does not expressly determine that a discovery violation occurred, an appellate court reviews the issue without deference. See Williams, 364 Md. at 169, 771 A.2d at 1087 (“Where the trial [court] made no specific finding as a matter of law that the State violated the discovery rule, we exercise independent de novo review to determine whether a discovery violation occurred.” (Citations omitted)).
A court interprets a Maryland Rule by using the same canons of construction that the court uses to interpret a statute. First, the court considers the Rule‘s plain language in light of: (1) the scheme to which the Rule belongs; (2) the purpose, aim, or policy of this Court in adopting the Rule; and (3) the presumption that this Court intends the Rules and this Court‘s precedent to operate together as a consistent and harmonious body of law. If the Rule‘s plain language is unambiguous and clearly consistent with the Rule‘s apparent purpose, the court applies the Rule‘s plain language. Generally, if the Rule‘s plain language is ambiguous or not clearly consistent with the Rule‘s apparent purpose, the court searches for rulemaking intent in other indicia, including the history of the Rule or other relevant sources intrinsic and extrinsic to the rulemaking process, in light of: (1) the structure of the Rule; (2) how the Rule relates to other laws; (3) the Rule‘s general purpose; and (4) the relative rationality and legal effect of various competing constructions.
(Brackets, citations, and internal quotation marks omitted).
Where a Rule‘s language is clear, a court “neither add[s] nor delete[s] language so as to reflect an intent not evidenced in the plain and unambiguous language of the Rule.” Williams v. State, 435 Md. 474, 490, 79 A.3d 931, 940 (2013) (brackets, citation, and internal quotation marks omitted). “Unambiguous language will be given its usual, ordinary meaning unless doing so creates an absurd result.” Hurst v. State, 400 Md. 397, 417, 929 A.2d 157, 168 (2007) (citation omitted).
Maryland Rule 4-263
(a) Applicability. This Rule governs discovery and inspection in a circuit court.
Committee note.—This Rule also governs discovery in actions transferred from District Court to circuit court upon a jury trial demand made in accordance with Rule 4-301(b)(1)(A). See Rule 4-301(c).
(b) Definitions. In this Rule, the following definitions apply:
(1) Defense. “Defense” means an attorney for the defendant or a defendant who is acting without an attorney.
(2) Defense Witness. “Defense witness” means a witness whom the defense intends to call at a hearing or at trial.
(3) Oral Statement. “Oral statement” of a person means the substance of a statement of any kind by that person, whether or not reflected in an existing writing or recording.
(4) Provide. Unless otherwise agreed by the parties or required by Rule or order of court, “provide” information or material means (A) to send or deliver it by mail, e-mail, facsimile transmission, or hand-delivery, or (B) to make the information or material available at a specified location for purposes of inspection if sending or delivering it would be impracticable because of the nature of the information or material.
(5) State‘s Witness. “State‘s witness” means a witness whom the State‘s Attorney intends to call at a hearing or at trial.
Cross references.—For the definition of “State‘s Attorney,” see Rule 4-102(l).
(6) Written Statement. “Written statement” of a person:
(A) includes a statement in writing that is made, signed, or adopted by that person;
(B) includes the substance of a statement of any kind made by that person that is embodied or summarized in a writing or recording, whether or not signed or adopted by the person;
(C) includes a statement contained in a police or investigative report; but
(D) does not include attorney work product.
(c) Obligations of the Parties. (1) Due Diligence. The State‘s Attorney and defense shall exercise due diligence to identify all of the material and information that must be disclosed under this Rule.
(2) Scope of Obligations. The obligations of the State‘s Attorney and the defense extend to material and information that must be disclosed under this Rule and that are in the possession or control of the attorney, members of the attorney‘s staff, or any other person who either reports regularly to the attorney‘s office or has reported to the attorney‘s office in regard to the particular case.
Cross references.—For the obligations of the State‘s Attorney, see State v. Williams, 392 Md. 194, 896 A.2d 973 (2006).
(d) Disclosure by the State‘s Attorney. Without the necessity of a request, the State‘s Attorney shall provide to the defense:
(1) Statements. All written and all oral statements of the defendant and of any co-defendant that relate to the offense charged and all material and information, including documents and recordings, that relate to the acquisition of such statements;
(2) Criminal Record. Prior criminal convictions, pending charges, and probationary status of the defendant and of any co-defendant;
(3) State‘s Witnesses. As to each State‘s witness the State‘s Attorney intends to call to prove the State‘s case in chief or to rebut alibi testimony: (A) the name of the witness; (B) except as provided under Code, Criminal Procedure Article, § 11-205 or Rule 16-910(b), the address and, if known to the State‘s Attorney, the telephone number of the witness; and (C) all written statements of the witness that relate to the offense charged;
(4) Prior Conduct. All evidence of other crimes, wrongs, or acts committed by the defendant that the State‘s Attorney intends to offer at a hearing or at trial pursuant to Rule 5-404(b);
(5) Exculpatory Information. All material or information in any form, whether or not admissible, that tends to exculpate the defendant or negate or mitigate the defendant‘s guilt or punishment as to the offense charged;
(6) Impeachment Information. All material or information in any form, whether or not admissible, that tends to impeach a State‘s witness, including:
(A) evidence of prior conduct to show the character of the witness for untruthfulness pursuant to Rule 5-608(b);
(B) a relationship between the State‘s Attorney and the witness, including the nature and circumstances of any agreement, understanding, or representation that may constitute an inducement for the cooperation or testimony of the witness;
(C) prior criminal convictions, pending charges, or probationary status that may be used to impeach the witness, but the State‘s Attorney is not required to investigate the criminal record of the witness unless the State‘s Attorney knows or has reason to believe that the witness has a criminal record;
(D) an oral statement of the witness, not otherwise memorialized, that is materially inconsistent with another statement made by the witness or with a statement made by another witness;
(E) a medical or psychiatric condition or addiction of the witness that may impair the witness‘s ability to testify truthfully or accurately, but the State‘s Attorney is not required to inquire into a witness‘s medical, psychiatric, or addiction history or status unless the State‘s Attorney has information that reasonably would lead to a belief that an inquiry would result in discovering a condition that may impair the witness‘s ability to testify truthfully or accurately;
(F) the fact that the witness has taken but did not pass a polygraph examination; and
(G) the failure of the witness to identify the defendant or a co-defendant;
Cross references.—See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); Giglio v. U.S., 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); U.S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Thomas v. State, 372 Md. 342, 812 A.2d 1050 (2002); Goldsmith v. State, 337 Md. 112, 651 A.2d 866 (1995); and Lyba v. State, 321 Md. 564, 583 A.2d 1033 (1991).
(7) Searches, Seizures, Surveillance, and Pretrial Identification. All relevant material or information regarding:
(A) specific searches and seizures, eavesdropping, and electronic surveillance including wiretaps; and
(B) pretrial identification of the defendant by a State‘s witness;
(8) Reports or Statements of Experts. As to each expert consulted by the State‘s Attorney in connection with the action:
(A) the expert‘s name and address, the subject matter of the consultation, the substance of the expert‘s findings and opinions, and a summary of the grounds for each opinion;
(B) the opportunity to inspect and copy all written reports or statements made in connection with the action by the expert, including the results of any physical or mental examination, scientific test, experiment, or comparison; and
(C) the substance of any oral report and conclusion by the expert;
(9) Evidence for Use at Trial. The opportunity to inspect, copy, and photograph all documents, computer-generated evidence as defined in Rule 2-504.3(a), recordings, photographs, or other tangible things that the State‘s Attorney intends to use at a hearing or at trial; and
(10) Property of the Defendant. The opportunity to inspect, copy, and photograph all items obtained from or belonging to the defendant, whether or not the State‘s Attorney intends to use the item at a hearing or at trial.
...
(g) Matters Not Discoverable. (1) By Any Party. Notwithstanding any other provision of this Rule, neither the State‘s Attorney nor the defense is required to disclose (A) the mental impressions, trial strategy, personal beliefs, or other privileged attorney work product or (B) any other material or information if the court finds that its disclosure is not constitutionally required and would entail a substantial risk of harm to any person that outweighs the interest in disclosure.
(2) By the Defense. The State‘s Attorney is not required to disclose the identity of a confidential informant unless the State‘s Attorney intends to call the informant as a State‘s witness or unless the failure to disclose the informant‘s identity would infringe a constitutional right of the defendant.
...
(j) Continuing Duty to Disclose. Each party is under a continuing obligation to produce discoverable material and information to the other side. A party who has responded to a request or order for discovery and who obtains further material information shall supplement the response promptly.
...
(n) Sanctions. If at any time during the proceedings the court finds that a party has failed to comply with this Rule or an order issued pursuant to this Rule, the court may order that party to permit the discovery of the matters not previously disclosed, strike the testimony to which the undisclosed matter relates, grant a reasonable continuance, prohibit the party from introducing in evidence the matter not disclosed, grant a mistrial, or enter any other order appropriate under the circumstances. The failure of a party to comply with a discovery obligation in this Rule does not automatically disqualify a witness from testifying. If a mo-
tion is filed to disqualify the witness‘s testimony, disqualification is within the discretion of the court.
(Emphasis added).
Collins v. State
In Collins v. State, 373 Md. 130, 146, 133-34, 816 A.2d 919, 928, 921 (2003), this Court held that the State violated what is now
In Collins, 373 Md. at 132, 816 A.2d at 920, the defendant was convicted of first-degree murder and related handgun offenses. On the night of the shooting, a witness told a Baltimore City detective that he had not seen anything because he had been too far away. See id. at 133, 816 A.2d at 921. The detective included this information in a report. See id. at 133, 816 A.2d at 921. Subsequently, however, before trial, the witness identified the defendant as the shooter in a photographic array and gave a contemporaneous audiotaped statement. See id. at 133-34, 816 A.2d at 921. Initially, during discovery, the State disclosed the witness‘s pretrial photographic array identification of the defendant, but did not disclose the pretrial failure to identify the defendant the night of the shooting, or the audiotaped statement identifying the defendant. See id. at 134, 816 A.2d at 921. Later, the State provided to the defense the audiotaped statement, but still did
At trial, the State initially encountered difficulties in securing the witness‘s appearance. See id. at 134, 816 A.2d at 921. By the time that law enforcement officers located the witness, the trial‘s evidentiary phase had concluded. See id. at 134-35, 816 A.2d at 921. The State moved to reopen its case so that the witness could testify. See id. at 135, 816 A.2d at 921. The defendant‘s counsel opposed the motion to reopen on the ground that there was no necessity for reopening, as the State had simply failed to summons the witness before trial. See id. at 135, 816 A.2d at 921-22. The defendant‘s counsel also advised that he had just learned about the witness‘s pretrial failure to identify the defendant. See id. at 135, 816 A.2d at 922. The prosecutor responded that the omission of the witness‘s pretrial failure to identify the defendant was inadvertent. See id. at 135, 816 A.2d at 922. The trial court granted the motion to reopen. See id. at 135, 816 A.2d at 922.
The defendant‘s counsel moved for a continuance over the weekend to prepare for the witness‘s testimony, and the trial court denied the motion to continue. See id. at 143, 816 A.2d at 926-27. While testifying, the witness identified the defendant as the shooter. See id. at 139, 816 A.2d at 924. The defendant was convicted. See id. at 132, 816 A.2d at 920. The Court of Special Appeals affirmed, and this Court reversed and remanded for a new trial. See id. at 132, 149, 816 A.2d at 920, 930.
In discussing the underlying policies of
Inherent benefits of discovery include providing adequate information to both parties to facilitate informed pleas, ensuring thorough and effective cross-examination, and expediting the trial process by diminishing the need for continuances to deal with unfamiliar information presented at trial. Specific to the mandatory disclosure provisions of [Maryland] Rule 4-263( [d]), the major objectives are to assist defendants in preparing their defense and to protect
them from unfair surprise. The duty to disclose pre[ ]trial identifications, then, is properly determined by interpreting the plain meaning of [Maryland] Rule [4-263] with proper deference to these policies.
Id. at 146-47, 816 A.2d at 928 (quoting Williams, 364 Md. at 172, 771 A.2d at 1089).
This Court concluded that the State violated
This Court held that the State‘s violation of
This Court determined that the trial court abused its discretion in denying the defendant‘s motion for a continuance, which would have given the defendant‘s counsel “an opportunity to review the circumstances surrounding the undisclosed
Analysis
Here, we conclude that, as a general matter,
As an initial matter, we address the State‘s contention that, even if
To call each other, [ ] Green and [ ] Copeland had to use outside sources to connect them together. You heard testimony about the system at the detention center. They are on
separate tiers. Co-defendants, people who are charged as co-defendants in a crime, are put in separate places, and one of the reasons is so that they can‘t talk, can‘t contrive, can‘t discuss the cases.
The record demonstrates that, in the circuit court, the State took a different position with respect to Copeland‘s status as a co-defendant.
No Maryland Rule or statute defines the term “co-defendant.” Black‘s Law Dictionary provides the following definition of the term “co-defendant“: “One of two or more defendants sued in the same litigation or charged with the same crime.” Codefendant, Black‘s Law Dictionary (10th ed. 2014).
Neither this Court nor the Court of Special Appeals has had the occasion to expressly define the term “co-defendant.” Both this Court and the Court of Special Appeals, however, have treated the term “co-defendant” in a manner that indicates that Black‘s Law Dictionary‘s definition of the term “co-defendant” is accurate—i.e., that a co-defendant is an individual who is charged with the same crime as the defendant. In Veney v. State, 251 Md. 159, 164, 246 A.2d 608, 612 (1968), this Court stated: “The motion for discovery and inspection filed by the appellant asked for copies of all written statements of three co-defendants who were charged with the same crimes with which appellant was charged.” (Emphasis added). In Boone v. State, 3 Md.App. 11, 31, 237 A.2d 787, 800 (1968), cert. denied, 393 U.S. 872, 89 S.Ct. 161, 21 L.Ed.2d 141 (1968), the Court of Special Appeals stated: “The fact of the conviction or acquittal of one person charged with a crime is neither relevant nor material to the issue of the guilt or innocence of another person charged with the same crime as a co-perpetrator. Contrary to the position taken by the appellant, we feel that the admission of evidence of the conviction of a co-defendant at a prior trial would be prejudicial error.” (Emphasis added).5 And, in Boyd v. State, 321 Md. 69, 72, 581
This Court has never determined, or, indeed, even indicated, that a co-defendant must be charged in the same charging document as the defendant. To the contrary,
The State mistakenly relies on State v. Stojetz, 84 Ohio St.3d 452, 705 N.E.2d 329, 338 (1999) for the proposition that, to be a co-defendant, an individual must have been charged in the same charging document as the defendant. In Stojetz, id., the Supreme Court of Ohio reasoned that co-conspirators were not co-defendants because the defendant “was the only person charged in the indictment[.]” In Stojetz, id., the Court quoted State v. Wickline, 50 Ohio St.3d 114, 552 N.E.2d 913, 918 (1990), in which, in turn, the Court quoted the following definition of “co-defendant” in Black‘s Law Dictionary (5th ed. 1979): “More than one defendant being sued in the same litigation; or, more than one person charged in same complaint or indictment with same crime.” (Emphasis added).
The Tenth Edition‘s definition of the term “co-defendant” is consistent with Maryland case law, which indicates that a co-defendant is an individual who is charged with the same crime as the defendant. To the extent that an older edition of Black‘s Law Dictionary, or Ohio case law, endorses a definition of the term “co-defendant” that requires the co-defendant to be charged in the same charging document as the defendant, such a definition is inconsistent with the way in which this Court and the Court of Special Appeals have employed the term “co-defendant.” In this case, it is undisputed that Copeland pled guilty to first-degree murder of Myers and conspiracy to commit first-degree murder of Myers—i.e., that he was charged with, and convicted of, the same crimes with which Green was charged. We have no difficulty in concluding that Green and Copeland were co-defendants.
As to the plain language of
One of the cardinal tenets of rule interpretation is that, where the language of the Rule is plain, we “neither add nor delete language” to reach a result not set forth in the clear language of the Rule. Williams, 435 Md. at 490, 79 A.3d at 940 (citation and internal quotation marks omitted). The language of
Each party contends that
Our interpretation of
We acknowledge that there may be cases, such as this one, where a defendant alleges that a pretrial identification of a co-defendant is relevant and, thus, should be disclosed under
We conclude that the language of
Given that
Without the necessity of a request by the defendant, the State‘s Attorney shall furnish to the defendant:
- Any material or information within his possession or control which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce his punishment therefor; [and]
- Any relevant material or information regarding: (a) specific searches and seizures, wire taps and eavesdropping, (b) the acquisition of statements made by the defendant, and
(c) pretrial identification of the defendant by a witness for the State.
(Emphasis added). Thus, like current
In 1984, without substantive amendment, former Maryland Rule 741(a)(2)(c) was replaced by
On September 26, 2007, the Rules Committee submitted its One Hundred Fifty-Eighth Report to this Court. Rules Committee, One Hundred Fifty-Eighth Report at 3 (Sept. 26, 2007), available at http://www.mdcourts.gov/rules/reports/158thReport.pdf [https://perma.cc/7U62-CPYN]. The Rules Committee proposed making several amendments to
The Rules Committee proposed a Committee Note stating in pertinent part: “Examples of material and information that must be disclosed pursuant to subsections (b)(2) and (3) of this Rule if within the possession or control of the State ... include: ... the [pretrial] failure of a witness to make an identification[.]” Id. The Rules Committee, however, did not include in the text of proposed
In a Rules Order dated December 4, 2007, this Court deferred consideration of the proposed amendments to
On March 25, 2008, the Rules Committee submitted a Supplement to the One Hundred Fifty-Eighth Report. Rules Committee, Supplement to One Hundred Fifty-Eighth Report at 1 (March 25, 2008), available at http://www.mdcourts.gov/rules/reports/158supplementappx.pdf [https://perma.cc/SM3F-A7QZ]. In the Supplement, the Rules Committee explained why this Court had deferred consideration of the proposed amendments to
At the hearing held on [the One Hundred Fifty-Eighth] Report[ ] on December 3, 2007, concerns were expressed by a number of prosecutors and others with respect to certain aspects of the recommended changes to [Maryland] Rules
4-262 and4-263 , principally the latter. Members of the Court inquired whether, in formulating its recommendations, the Rules Committee had considered the [ABA Standards], and the answer was that those Standards had not been considered. In light of the controversy with respect tosome of the [Rules] Committee‘s proposals, the Court deferred action on them.
Id. The Rules Committee stated: “Although the Rules Committee has now given consideration to the ABA Standards and has crafted [Maryland] Rule[] 4-263 in closer harmony to them, its recommendations continue to depart from them in some respects.” Id. at 3.
With regard to pretrial identifications, the Rules Committee proposed adding
Proposed
The prosecution should, within a specified and reasonable time prior to trial, disclose to the defense the following information and material and permit inspection, copying, testing, and photographing of disclosed documents or tangible objects ... [a]ny material, documents, or information
relating to lineups, showups, and picture or voice [pretrial] identifications in relation to the case.
ABA Standards, available at https://www.americanbar.org/publications/criminal_justice_section_archive/crimjust_standards_discovery_blk.html# 2.1 [https://perma.cc/3UWQ-4SQQ] (emphasis added).
In Appendix C to the Supplement,8 the Rules Committee addressed the differences between proposed
[Maryland] Rule 4-263(d)(7), when coupled with [
Maryland Rule 4-263 ](d)(6)(G)[,] is generally consistent with [ABA Standard 11-2.1], but there are some differences. As to [pretrial] identification evidence, [ ] ABA Standard [11-2.1(a)(vii)] would seem to apply to the [pretrial] identification (or not) of anyone; [Maryland Rule 4-263 ](d)(6)(G) and (d)(7) cover only [pretrial] identifications of the defendant or co-defendant by a State‘s witness (or [pretrial] failure to make such an identification). [Maryland Rule 4-263 ](d)(7) follows the current Rule, and the Rules Committee saw no need to expand the Rule. The ABA Standard requires only that the State inform the defense of electronic surveillance and does not require disclosure of relevant material concerning it. To that extent, subsection (d)(7) is broader than the ABA Standard. With respect to the disclosure of information regarding specific searches and seizures, subsection (d)(7) is comparable to ABA Standard 11-2.1(d).
Rules Committee, Supplement to One Hundred Fifty-Eighth Report at 41-42 (emphasis added).
From our perspective, there is nothing in the history of
It is significant that the Rules Committee stated that it “saw no need to expand”
In sum,
II. Pretrial Identification of the Co-Defendant in this Case
The Parties’ Contentions
Green contends that, under this case‘s circumstances,
Green argues that his position is supported by Collins, 373 Md. at 146 n.9, 816 A.2d at 928 n.9, in which this Court commented that “the State was required by [Maryland Rule] 4-263[ (d)(7)(B)] to produce not only statements containing the identification, but also any and all other statements made by [the State‘s witness] regarding who[m] he saw or did not see commit the act.” Green asserts that Carter‘s pretrial identification of Copeland was a statement regarding whom she did not see perform the shooting. Green contends that the importance of Carter‘s identification of Copeland establishes that the error was not harmless. Green argues that the prosecutor‘s reliance on Carter‘s identification during the State‘s closing argument demonstrated the importance of Carter‘s identification to the State‘s case.
The State responds that
Relevant Case Law
In Williams, 364 Md. at 164, 771 A.2d at 1084, this Court held that a law enforcement officer‘s surveillance observations
In Williams, id. at 164-65, the defendant was charged with distribution of cocaine; the charges stemmed from the execution of a search warrant at an apartment. The State contended that, shortly before execution of the warrant, the defendant entered the apartment, which was under law enforcement surveillance, to deliver cocaine. See id. at 165. In Williams, id. at 166, in response to a request for disclosure from the defendant‘s counsel, the State filed discovery stating that the defendant had not been identified through a pretrial identification procedure. Subsequently, the defendant moved to suppress any unlawful pretrial identifications of him. See id. at 166. Immediately prior to a hearing on the motion to suppress, the prosecutor proffered that the law enforcement officer‘s testimony would not be an identification because the officer would testify only as to the general description of a man who entered the apartment. See id. at 166. At the hearing, the prosecutor again proffered that, while surveilling an apartment for suspected drug activity, a law enforcement officer had seen a man enter the apartment. See id. at 167. The prosecutor also proffered that the officer had observed “the stature, the size, the height,” and race of the man who entered the apartment. See id. at 167. The prosecutor proffered, howev-
Contrary to the prosecutor‘s multiple proffers, at trial, the officer identified the defendant as the man who entered the apartment. See id. 167-68. The defendant‘s counsel objected and moved to strike the officer‘s identification of the defendant. See id. at 168. The trial court overruled the objection and denied the motion to strike. See id. at 168.
Only one State‘s witness other than the officer placed the defendant in the apartment on the night in question. See id. at 165. Testifying pursuant to a plea agreement, the witness stated that the defendant entered the apartment, put a foil-wrapped package on the kitchen counter, and said to “take whatever off the top.” Id. at 165. After the defendant left the apartment, law enforcement officers executed a search warrant and found cocaine in the apartment. See id. at 165.
After being convicted, the defendant moved for a new trial, contending that the State had violated
As a threshold matter, in Williams, id. at 172, this Court observed that the case involved an issue of first impression—namely, whether a law enforcement officer‘s surveillance observations can be subject to mandatory disclosure under
is limited to [S]tate-orchestrated identification procedures, such as a photographic array, a show[]up, or a line[]up, because a purpose of the discovery disclosures is to “force the defendant to file certain motions before trial, including a motion to suppress ...” and a [law enforcement] officer‘s surveillance observations would not be the subject of such a pretrial motion.
Id. at 172 (ellipsis in original) (citation omitted).
This Court “f[ou]nd the State‘s position faulty[,]” and stated in relevant part:
Simply because we recognize the relationship between the discovery and pretrial motions rules, in that discovery is necessary so that mandatory pretrial motions can be filed, does not mean that we limit discovery to strictly that which may be utilized in support of a pretrial motion. ... Relevancy is not limited to material or information which would tend to support a motion to suppress. Material or information is also producible under [Maryland] Rule 4-263[ (d)(7) ] if it supports the State‘s proposed use of validly obtained material or information and the denial of a defendant‘s suppression motion.
Generally speaking, discovery disclosures may, indeed, assist a defendant in determining whether certain motions can be filed prior to trial[,] and thus expedite the trial process; however, the fact that discovery may advance that
goal is not dispositive of other laudable goals. We have repeatedly insisted that discovery rules should assist the defendant in preparing a defense and protect him [or her] from surprise. One can hardly imagine a greater obstacle to a[ defendant‘s] defense than the State‘s declaration prior to trial that the only corroborating witness could not specifically identify the defendant, while the testimony of the witness at trial was nothing shy of a clear and positive identification—“it was [the defendant] who is seated at the defense table ...” Identification testimony may be outcome determinative and hence, any solid preparation of a defense demands this information. Furthermore, unlike statements made by the defendant, identification testimony naturally comes from third parties. As such, it is information with which, absent the State‘s disclosure, a defendant may never be familiar until trial. To prevent unfair surprise, disclosure of identification testimony is required.
Id. at 173-74 (second ellipsis in original) (brackets, citations, footnotes, and internal quotation marks omitted).
This Court held that the State violated
This Court rejected the State‘s argument that it had not violated
This Court concluded that the circumstance “that the [prosecutor] was ‘surprised’ [by the officer‘s in-court identification of the defendant] ha[d] no bearing on whether the defendant was prejudiced by the” prosecutor‘s inaccurate proffer. Id. at 176 n.21. In other words, this Court held that “‘surprise’ [on the part of the prosecutor] does not excuse or mitigate the prejudice to the defendant.” Id. at 176. This Court observed that “the State is charged with the knowledge of all seemingly pertinent facts related to the charge [that] are known to” law enforcement officers. Id. at 177 (citation and internal quotation marks omitted). This Court further explained why it does not matter whether a prosecutor is aware of facts that law enforcement officers know:
If [a prosecutor‘s] lack of knowledge could excuse, or even mitigate[,] the prejudicial effect of the undisclosed information, [prosecutor]s would most effectively operate in a vacuum because, by removing themselves from the privity of [law enforcement officers‘] testimony and evidence, [prosecutors] could slip beyond the grasp of discovery rules by claiming ignorance, and thereby force the defendant to enter trial unaware of the evidence to be offered against him [or her]. This is intolerable and totally adverse to one of the avowed purposes for discovery rules: to assist the defendant in preparing his [or her ] defense and prevent unfair surprise at trial.
Id. at 177-78 (emphasis in original).
This Court held that the State‘s violation of
In Simons v. State, 159 Md. App. 562, 575, 574, 860 A.2d 416, 424, 423 (2004), the Court of Special Appeals held that the State violated
While we shall not attempt to delineate the “limiting principle that prevents all statements about interactions with a defendant from constituting pre-trial identifications,” we are persuaded that the holding in Williams constrains us to conclude that, when the pretrial statement of an eyewitness directly implicates the defendant in the commission of the crime, such a statement is the equivalent of the State‘s test for what constitutes an identification, i.e., the witness‘s ability to say, “this is the man.”
Simons, 159 Md. App. at 575, 860 A.2d at 424.
In Simons, id. at 566, 574, at trial, the defendant‘s counsel learned that a State‘s witness had told officers that, on the night of a burglary, she saw the defendant near the victim‘s residence. The defendant‘s counsel characterized the witness‘s statement to officers as a pretrial identification of the defendant. See id. at 566. The defendant moved to preclude the witness from identifying the defendant at trial on the ground that the State had not disclosed the witness‘s pretrial identification of the defendant.
As a threshold matter, the Court of Special Appeals observed that it needed to determine whether the witness‘s statement to law enforcement officers constituted a pretrial identification for the purpose of
In Simons, id. at 575, the Court of Special Appeals determined that the witness‘s statement to law enforcement officers constituted a pretrial identification of the defendant, and was subject to mandatory disclosure under
The Court concluded that the State‘s violation of
Analysis
Here, we hold that, under this case‘s circumstances, Carter‘s pretrial identification of Copeland as the person who was not the shooter was relevant information regarding the pretrial identification of Green as the person who was the shooter, and was required to be disclosed under
As a threshold matter, we are unpersuaded by the State‘s contentions that the record does not establish that Carter informed law enforcement officers of her ability to identify Copeland before trial, and that Carter did not make a pretrial identification of Copeland. In affirming the convictions, the Court of Special Appeals determined that the State‘s discovery obligations pursuant to
To be sure, Carter did not specify when she “went over everything again” with the detectives. But, twenty days before the first day of trial, the State requested a writ to compel Copeland to appear at trial. Notably, Copeland‘s plea agreement provided that, if either party called Copeland as a witness in this case, he would invoke his privilege against self-incrimination in response to any question of substance. As such, the State‘s purpose in securing Copeland‘s appearance could not have been to call him as a witness. Instead, as the prosecutor acknowledged at a bench conference, the State‘s purpose was to have Carter identify Copeland. Specifically, the prosecutor stated: “[T]he [S]tate‘s intention at this time—and this was the reason for the writ for [ ] Copeland[.] ... It is the [S]tate‘s proffer to the court that we believe that [ ] Carter, upon seeing [ ] Copeland, will be able to positively identify him.” The State‘s request for a writ to compel Copeland‘s appearance three weeks before trial leads to the inescapable conclusion that, sometime before the request for the writ—i.e., pretrial—Carter told detectives that she recognized
More tellingly, though, at trial, at a bench conference during Carter‘s testimony, before her identification of Copeland, the prosecutor informed the circuit court: “We intend to have [ ] Carter specifically ... identify [ ] Copeland either by face, and say, yes, that‘s him, or that looks like him or whatever she says, then ask her about the physique, whether that‘s consistent with the first or the second person or anything to that effect.” In other words, before Carter‘s identification of Copeland, the prosecutor advised that the sole purpose of Copeland‘s presence was for Carter to identify him.
Equally telling, the record reveals other circumstances giving rise to the conclusion that the prosecutor intended for Carter to identify Copeland at trial—i.e., that Carter had advised detectives pretrial of her ability to identify Copeland. Before opening statements, the prosecutor stated that he wanted Copeland to appear in the courtroom during Carter‘s testimony so that she could identify him. During opening statement, the prosecutor said: “[Y]ou have one eyewitness putting two people, one which will be very clearly identified as [ ] Copeland and one that loosely identifies as [ ] Green, at the scene of the shooting[.]” During direct-examination of Carter, the prosecutor asked Carter whether she would be able to identify the tall, skinny man who had stood next to the Mustang‘s driver‘s door—i.e., the person who was not the shooter—if he were shown to her. Carter responded in the affirmative. At a bench conference, Green‘s counsel expressed surprise that Carter would be able to identify Copeland. In response, the prosecutor did not claim that he too was surprised to learn that Carter could identify Copeland. Instead, the prosecutor stated that “[t]here [wa]s no surprise” because Green‘s counsel knew that multiple witnesses could identify Copeland. Significantly, at no time did the prosecutor advise the circuit court that he, like Green‘s counsel, had been
Our precedent mandates the conclusion that Carter‘s informing detectives before trial of her ability to identify Copeland as the person who was not the shooter constituted a pretrial identification of Copeland. For purposes of
It is of no moment that Carter may or may not have informed law enforcement officers that she recognized Copeland in a photograph in a newspaper, or that the officers were not present when Carter viewed the newspaper. Just as it is unnecessary for an identification to occur during a lineup, showup, or other formal identification procedure, see Williams, 364 Md. at 172-73, 771 A.2d at 1089, it is also unnecessary for an eyewitness‘s recognition of a person who was at the scene
Having determined that Carter made a pretrial identification of Copeland and that law enforcement officers were aware of the identification, we must next determine whether that identification was subject to mandatory disclosure under
In Collins, 373 Md. at 146, 816 A.2d at 928, this Court underscored the importance of the phrase “relevant material or information regarding” in
Instead, the phrase “relevant material or information regarding” renders
In addition to considering
The facts of this case serve as a prime example of a pretrial identification of a co-defendant being effectively the equivalent of a pretrial identification of the defendant. It is undisputed that, at the time of the shooting, Myers, the victim, was in his truck, which was facing Copeland‘s Mustang. Carter testified that, as she was driving by the scene of the shooting, she saw two men. One man was shorter and stouter, wearing a hoodie, and standing off to the side of the road. The other man was taller and skinnier, wearing a hat with snowflakes, and standing near the Mustang‘s driver‘s seat. Carter heard a gunshot, looked into her driver‘s side-view mirror, and saw the shorter, stouter man shoot into the truck three times. Carter had not gotten a look at the face of the shorter, stouter man—i.e., the shooter—because his hood was up. Carter had, however, gotten a look at the face of the tall, thin man—i.e., the person who was not the shooter. The record establishes that prior to trial Carter informed law enforcement officers of her ability to identify Copeland as the person who was not the shooter. And, at trial, Carter unequivocally identified Copeland as the person who was not the shooter. The State‘s theory of the case was that Green was the person with Copeland and was the shooter.
Given the State‘s theory of the case, Carter‘s identification of Copeland as the person who was not responsible for the shooting established that Green was the shooter. Carter‘s pretrial identification of Copeland was in essence the equivalent of a pretrial identification of Green as the shooter. As such, Carter‘s pretrial identification of Copeland was relevant information regarding the pretrial identification of Green, and was subject to mandatory disclosure under
Independent of Green‘s testimony, Carter‘s pretrial identification of Copeland was known to the prosecutor and relevant to the pretrial identification of Green. The State‘s theory of the case was that only Green, Copeland, and Myers were at the scene of the shooting. At trial, the State introduced evidence aimed at establishing that Green was the third person at the scene of the shooting—i.e., that Green was the shooter. Watson, Myer‘s girlfriend, and both of Myers‘s parents testified that, two days before the shooting, Green and Copeland confronted Myers about the burglary of Copeland‘s residence. Carter, Wisniewski, Miller, and Deputy First Class Griffin testified that, around the time of the shooting, two people were in or near a dark Mustang that was at or near the scene of the shooting. Detective Swonger prepared Cellular Analysis Reports that showed that, around the time of the
In sum, the State presented evidence that Green, Copeland, and Myers were the only people at the scene of the shooting. Before Green testified, Carter‘s identification of Copeland as the person who was not the shooter, in the context of the State‘s theory of the case and the evidence presented at trial in support of that theory, identified Green as the shooter. The State obviously knew in advance of trial that Carter‘s identification of Copeland as the person who was not the shooter was not only relevant, but also highly probative as to the issue of the shooter‘s identity.
Our holding does not require prosecutors to predict the future. As a prosecutor prepares for trial, he or she becomes aware of evidence that identifies the defendant. A prosecutor is in a position to determine whether a witness‘s pretrial identification of a co-defendant is the equivalent of a pretrial identification of the defendant as the person responsible for the crime. For example, here, the prosecutor was certainly aware in advance of trial of the State‘s theory that Green, Copeland, and Myers were the only people at the scene of the shooting and that Copeland was not the shooter. The prosecutor knew in advance that, if Carter identified Copeland as the person who was not the shooter, her identification of Copeland would essentially identify Green as the shooter. It was incumbent upon the prosecutor under
Having established that the State violated
Here, Carter‘s identification of Copeland as the person who was not the shooter was critical to the State‘s case. Carter was the State‘s only eyewitness to the shooting. Carter‘s testimony that Copeland was not the shooter was the only evidence that directly identified Green as the shooter. The other State‘s witnesses, at best, gave testimony demonstrating that Green and Copeland confronted Myers and testimony that placed Green at the scene of the shooting. For example, Watson and both of Myers‘s parents testified that, two days before the shooting, Green and Copeland visited Myers‘s residence and confronted him about the burglary of Copeland‘s residence. Detective Swonger‘s Cellular Analysis Reports established that, around the time of the shooting, Copeland‘s and Green‘s cell phones connected to cell towers in the general vicinity of Myers‘s residence. Peacock testified that, on the day of the shooting, Green said that he had been at the scene of the shooting, but denied that he had done it. Although the State produced evidence placing Green at the scene of the shooting and demonstrating that Green and Copeland had confronted Myers, Carter was the only eyewitness to the shooting. Significantly, the prosecutor referred to Carter‘s identification of
Undeniably, the State‘s failure to disclose Carter‘s pretrial identification of Copeland prejudiced Green. Green‘s counsel stated that it was a “surprise” to learn at trial that Carter was expected to identify Copeland. The State‘s failure to disclose Carter‘s pretrial identification of Copeland prevented Green‘s counsel from attempting to interview Carter about her identification of Copeland, and potentially performing research to determine if, or when, Carter had seen Copeland‘s photograph in a newspaper. Green‘s counsel lacked the ability to prepare to cross-examine Carter regarding the timing or remoteness of her pretrial identification of Copeland. Green‘s counsel was unable to prepare to question Carter as to whether anything in the newspaper article or other circumstances may have influenced Carter‘s testimony. Although Green‘s counsel theoretically could have formulated such questions without being told of Carter‘s pretrial identification of Copeland before trial, being aware of the pretrial identification would undoubtedly have aided Green‘s counsel‘s trial preparation.
In addition to providing Green‘s counsel the opportunity to interview Carter about her identification of Copeland and perform pretrial research, disclosure of Carter‘s pretrial identification of Copeland may have “influenced [Green‘s] decision to accept a plea bargain[.]” Simons, 159 Md.App. at 574, 860 A.2d at 423. In any event, “[i]t is not for us to determine what, if any, response the defense could have prepared had it known of the prior inconsistent statement. It is enough to find that the defense was denied an adequate opportunity to do so, to its prejudice.” Collins, 373 Md. at 148, 816 A.2d at 929.
In sum, we are far from convinced beyond a reasonable doubt that the State‘s violation of
We reject the State‘s contention that cross-examination was the proper remedy for the violation of
Contrary to the State‘s position, the prejudice to Green was not ameliorated by the circumstance that he testified that he, Copeland, and Myers were the only people at the scene of the shooting. Regardless of whether Green testified as such, Carter‘s identification of Copeland as the person who was not the shooter remained the only direct evidence that Green was the shooter. Independent of Green‘s testimony, Carter‘s identification of Copeland was crucial to the State‘s case.
Nor do we agree with the State‘s contention that any prejudice to Green from Carter‘s identification of Copeland was nullified by the circumstance that, according to the statement of charges, Carter indicated that the shooter was a short, stocky person and the non-shooter was the tall, thin
Having held that the State violated
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENTS OF THE CIRCUIT COURT FOR CECIL COUNTY AND REMAND FOR A NEW TRIAL. RESPONDENT TO PAY COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS.
Barbera, C.J., McDonald and Hotten, JJ., dissent.
Dissenting Opinion by McDonald, J., which Barbera, C.J., and Hotten, J., join.
There is much in the meticulously rendered Majority opinion with which I agree. However, the Majority opinion interprets the discovery rule relating to a “pretrial identification of
As the Majority opinion indicates, Doris Carter was originally able to say that the confrontation on Principio Road involved a short, stocky (or stout) man and a tall, thin man and that the short, stocky man was the shooter. Despite her initial inability to make any identifications of either man, she later realized, and advised the prosecution at some point in advance of taking the stand, that she could identify Mr. Copeland as the tall, thin man. The Majority opinion characterizes this as a “pretrial identification” of Mr. Copeland, which seems fair. Majority op. at 155-60, 171 A.3d at 1195-98.
I also agree that it is appropriate to refer to Mr. Copeland, as the Majority opinion does, as a “co-defendant” of Mr. Green, regardless of whether they were both charged in the same indictment or in separate indictments. Majority op. at 133-37, 171 A.3d at 1182-85.
I also agree with the Majority opinion that the criminal discovery rule,
The Majority opinion then reasons, however, that Ms. Carter‘s pretrial identification of Mr. Copeland was also “relevant ... information regarding ... pretrial identification of [Mr. Green]” for purposes of
In order for there to be “relevant ... information regarding ... pretrial identification of [Mr. Green],” there must be a pretrial identification of Mr. Green. What “pretrial identification of [Mr. Green]” is at issue here?
Thus, there was no “pretrial of identification of [Mr. Green]” in this case. At trial, it was all the items of evidence, recounted in detail by the Majority opinion, that effectively proved that Mr. Green was the short, stocky man involved in the confrontation with Mr. Myers on Principio Road—a fact that Mr. Green confirmed in his own testimony. Ms. Carter‘s identification of Mr. Copeland as the tall, thin man in that confrontation is one piece of the mosaic of relevant evidence that pointed to Mr. Green as the shooter.2 But this piece of the mosaic was not a “pretrial identification of [Mr. Green].” And, without a pretrial of identification of Mr. Green, there cannot be, in the language of the rule, “relevant information” concerning a non-existent pretrial identification of Mr. Green.
The Majority opinion seeks to base its analysis on Williams v. State, 364 Md. 160, 771 A.2d 1082 (2001) and Collins v. State, 373 Md. 130, 816 A.2d 919 (2003). Both of those cases involved deficiencies in pretrial discovery concerning witnesses who were able to identify the defendant prior to trial and who
Ultimately, the Majority opinion rests its holding on the proposition that, in this case, “a pretrial identification of a co-defendant [is] effectively the equivalent of a pretrial identification of the defendant.” Majority op. at 162, 171 A.3d at 1199. The Majority opinion reasons that, because Ms. Carter had described the shooter as short and stocky and the non-shooter as tall and thin, her identification of Mr. Copeland as the tall, thin man was effectively an identification of Mr. Green as the shooter. But the same could be said for Detective Lewis’ testimony that, at the time of the offense, Mr. Green was 5‘7” and 190 pounds while Mr. Copeland was 5‘11” and 160 pounds. That testimony also established that, in relation to each other, Mr. Copeland was the tall, thin man and Mr. Green the short, stocky man, and thus “effectively” identified Mr. Green as the shooter.
In any event, it is easy for us to say, with the record of the entire trial before us (including Mr. Green‘s own testimony), that Ms. Carter‘s identification of Mr. Copeland or Detective Lewis’ testimony concerning the height and weight of the two men—or some other item of evidence pointing to Mr. Green as the shooter that was known to the prosecution in advance of trial—was “effectively” an identification of Mr. Green. It is quite another thing to create a rule of pretrial discovery based on that hindsight observation. What other sort of inculpatory evidence, viewed from that perspective, will be deemed to be “effectively the equivalent” of a pretrial identification of a defendant?
Chief Judge Barbera and Judge Hotten have advised that they join this opinion.
ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Louisa Content MCLAUGHLIN
Misc. Docket AG No. 47, Sept. Term, 2016
Court of Appeals of Maryland.
October 20, 2017
171 A.3d 1205
Notes
However, where, as here, a witness identifies a co-defendant before trial, this circumstance does not provide any grounds for impeachment under