JOHN W. GREEN, III
STATE OF MARYLAND
Meredith, Graeff, Friedman, JJ.
in the Circuit Court for Cecil County convicted appellant,
John W. Green, III, of first-degree murder, conspiracy to
commit first-degree murder, use of a firearm in the
commission of a felony, and unlawfully wearing, carrying or
transporting a handgun. The court sentenced appellant to
life, all but eighty years suspended, on the murder
conviction, thirty years, consecutive, on the conspiracy
conviction, and twenty years, consecutive to the murder
count, for the convictions of use of a firearm in the
commission of a felony and wearing, carrying, or transporting
appeal, appellant presents the following two questions for
this Court's review:
1. Did the trial court err in admitting the identification
testimony of a key State's witness?
2. Did the trial court err in allowing the State to present
evidence during closing argument?
reasons set forth below, we answer these questions in the
negative, and therefore, we shall affirm the judgments of the
AND PROCEDURAL BACKGROUND
October 23, 2013, Jeff Meyers was shot and killed in the
driveway of his Cecil County residence while sitting in his
pickup truck. During the ensuing seven-day trial against
appellant, the State presented numerous witnesses indicating
that the shooting was related to stolen money and drugs.
admitted at trial that he and Jonathan Copeland drove a Ford
Mustang to Mr. Meyers' house on Principio Road the day of
the murder, where they confronted Mr. Meyers about the theft
of money and drugs belonging to Mr. Copeland. An altercation
ensued, and Mr. Meyers was shot and killed.
it was not disputed that appellant was present at the time of
the murder, and that Mr. Copeland, who was taller and
skinnier than appellant, was the only other person with
appellant at the time of the shooting. The contested issue
was the identity of the shooter.
Carter testified that she was driving on Principio Road when
she observed a Mustang blocking Mr. Meyers' truck. She
observed that the door of the Mustang "was open on the
driver's side, and someone was standing there with one
foot in the car, one foot out of the car, and there was
another person standing off to [her] left." Ms. Carter
described the person "standing at the car" as
"tall and thin, " wearing a black hat "with
white design, [which] seemed to be like
snowflakes." She described the other person as a
"short stouter male, " who was wearing a
"hoodie" and appeared to be a "white
male." As she drove past the Mustang, Ms. Carter
observed "the short stout person shooting into" Mr.
the end of the State's direct examination of Ms. Carter,
the prosecutor asked her if she could identify the
"taller skinnier" man if she saw him. Ms. Carter
responded: "I think so." After a lengthy conference
with the court and opposing counsel, discussed in more
detail, infra, the prosecutor brought Mr. Copeland
into the courtroom. Ms. Carter then identified Mr. Copeland
as the "taller thin" person who was "wearing
the hat" and standing next to the black Mustang.
indicated, appellant was convicted of murder and related
crimes. This appeal followed.
first contends that the circuit court abused its discretion
in allowing Ms. Carter to identify Mr. Copeland in court as
the "taller thin" man that she saw standing outside
the driver's side of the Mustang "wearing the
hat." He asserts that, by "failing to provide [him]
with complete and accurate information regarding the extent
to which [Ms.] Carter could identify [Mr.] Copeland, both in
court and photographically, " the State "violated
its discovery obligations under Maryland Rule 4-263." He
contends that the court should have precluded the
identification procedure, and the failure to do so was an
abuse of discretion and reversible error.
State responds in several ways. Initially, it argues that
appellant's claim of a discovery violation is unpreserved
for this Court's review. Even if preserved, the State
contends that there was no violation of the discovery rules,
and therefore, appellant's claims are without merit.
Finally, the State argues that, even if it did fail to
satisfy its discovery obligations, any prejudice to appellant
was limited, and cross-examination, not exclusion of the
evidence, was the proper remedy.
Rule 4-263 sets forth the discovery obligations of
prosecutors in circuit court criminal trials. The provisions at
issue in this appeal are subsections (d)(3), (6), (7), and
(9). In this regard, the Rule provides as follows:
(d) Disclosure by the State's Attorney. Without the
necessity of a request, the State's Attorney shall
provide to the defense:
(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;
(6)Impeachment Information. All material or information in
any form, whether or not admissible, that tends to impeach a
State's witness, including:
(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
(G) the failure of the witness to identify the defendant or a
(7) Searches, Seizures, Surveillance, and Pretrial
Identification. All relevant material or information
(B) pretrial identification of the defendant by a State's
(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 . . . .
Williams v. State, 364 Md. 160, 171 (2001), the
Court of Appeals explained that the State's compliance
with these rules is not discretionary. The Maryland Rules of
Procedure, which have the force of law, "are not mere
guides but are 'precise rubrics' to be strictly
followed." Id. In determining whether a
discovery violation has occurred, the courts look first to
the plain meaning of the rule. Id. Accord Johnson v.
State, 360 Md. 250, 264-65 (2000) ("[T]o effectuate
the purpose and objectives of the rule, we look to its plain
text, " and if the words of the rule are unambiguous,
"our inquiry ordinarily ceases and we need not venture
outside the text of the rule."). The Court further
[T]he scope of pretrial disclosure requirements under
Maryland Rule 4-263 must be defined in light of the
underlying policies of the rule. 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 Rule 4-263(a), 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 the Rule with
proper deference to these policies.
Id. at 172 (citations omitted).
testimony at issue on appeal occurred on the third day of
trial, when the State called Ms. Carter, the only eyewitness
to the shooting. After she testified regarding what she saw,
including the "tall and thin" person standing by
the driver's door of the car and the "short stout
person shooting into the truck, " the following
[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?
[MS. CARTER:] Yes.
[PROSECUTOR:] And if he was presented to you do you believe
that you could identify him?
[MS. CARTER:] I think so.
[PROSECUTOR:] Your Honor, can we approach at this time,
[DEFENSE COUNSEL:] I'm going to object.
court then permitted counsel to approach. The jury left the
courtroom, and the following colloquy ensued:
[PROSECUTOR:] Your honor, the state's intention at this
time -- and this was the reason for the writ for Mr.
Copeland -- noting, of course, that the defendant
is not charged merely with first degree murder, he is also
charged with conspiracy to commit first degree murder.
He's charged specifically [with] conspiracy with Mr.
It is the state's proffer to the court that we believe
that Ms. Carter, upon seeing Mr. Copeland, will be able to
positively identify him. It's very clear that from the
case law that presence is not protected as fifth amendment
privilege material. Counsel for Mr. Copeland has already
indicated he knows what our intentions are for this morning,
and he doesn't believe he has any standing to object.
He's already counseled his client on this. And based on
representations of Mr. Copeland's attorney, Mr. Copeland
understands that the state intends to produce the body of Mr.
Copeland to at least one witness, and we've chosen Ms.
Carter for identification purposes. I think identification of
a co-defendant is -- when charged as coconspirators is almost
as important as identification of the defendant within the
We intend to have Ms. Carter specifically identify -- this is
the first prong of this -- identify Mr. 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. So that's what we plan to do,
and I know counsel has an objection.
counsel stated that the State was required to advise prior to
trial "that they're going to have a witness who
identifies the co-defendant." He then objected to
bringing Mr. Copeland into court to stand next to appellant
and ask Ms. Carter "are these the same two people,
" which "essentially [is] an identification of
[appellant], which no one said that anyone is going to
identify [appellant]." Counsel stated:
So I think, first of all, there is a discovery problem in
that we have no notice that this is going to happen. I mean,
that's -- I think that's been basically admitted that
he's not even sure if she's going to do it, but
clearly they -- someone had some idea that she's going to
come in here and say later on that she's come to
understand and now she's able to identify him. So
there's that issue.
And then to have -- I mean, I understand that you can perhaps
have people for builds and such; but that's not what
we're doing here. We're doing this to, one, identify
Mr. Copeland; two, he intends -- I mean, this is -- I
don't think ...