JOHN W. GREEN, III
STATE OF MARYLAND
Argued: September 7, 2017
Court for Cecil County Case No. 07-K-13-001914
Barbera, C.J. Greene Adkins McDonald Watts Hotten Getty, JJ.
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
discovery in a criminal case in a circuit court, Maryland
Rule 4-263(d)(7)(B) requires the State to disclose to the
defense, without the necessity of a request, "[a]ll
relevant material or information regarding . . . pretrial
identification of the defendant by a State's
we are asked to decide whether Maryland Rule 4-263(d)(7)(B)
requires the State to disclose to a defendant's counsel
information regarding a State's witness's pretrial
identification of a co-defendant. If not, we must decide
whether Maryland Rule 4-263(d)(7)(B) required the State to
make such a disclosure under the circumstances of this case,
in which the State's undisputed theory was that only the
defendant and co-defendant were with the person who was
killed when he was fatally shot, and a State's witness
identified the co-defendant as not being the shooter.
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"), a drug dealer. One of
Copeland's customers was Jeffrey Myers
("Myers"), the person who was killed. One day,
Myers burglarized Copeland's residence and stole cash and
drugs. Later that day, Copeland and Green went to Myers's
residence and confronted him about the burglary. The next
day, Copeland obtained a handgun. The following day, Copeland
and Green returned to Myers's residence and confronted
him about the burglary again. During the confrontation, Myers
was fatally shot. Copeland, Myers, and Green were the only
people who were present at the time of the shooting.
According to the State, Green was the shooter.
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.
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.
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.
us, Green contends that the circuit court erred in permitting
Carter to identify Copeland for two alternative reasons.
First, Green argues that Maryland Rule 4-263(d)(7)(B)
requires the State, as a matter of course, to disclose a
pretrial identification of a co-defendant during discovery.
Second, Green asserts that Maryland Rule 4-263(d)(7)(B)
required such a disclosure in this case because a pretrial
identification of Copeland as the person who was not the
shooter essentially constituted a pretrial identification of
Green as the shooter.
I, we hold that, as a general matter, Maryland Rule
4-263(d)(7)(B), by its plain language and history, does not
require disclosure of pretrial identifications of
co-defendants. In Part II, we conclude that a pretrial
identification of a co-defendant is "relevant . . .
information regarding . . . pretrial identification of the
defendant" under Maryland Rule 4-263(d)(7)(B) where the
pretrial identification of the co-defendant is the equivalent
of a pretrial identification of the defendant as the person
responsible for the crime. Here, Carter's pretrial
identification of Copeland as the person who was not the
shooter was the equivalent of a pretrial identification of
Green as the shooter because the State's theory of the
case was, and the State's evidence showed, that Green,
Copeland, and Myers, the person who was killed, were the only
people at the scene of the shooting, and Myers was shot by
one of the other two men. Thus, the State was obligated to
disclose during discovery Carter's pretrial
identification of Copeland as the person who was not the
Writ of Habeas Corpus, and State's Opening
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.
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
through December 12, 2014, and each day from December 15
through December 19, 2014. On December 8, 2014, trial began.
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."
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.
* * *
[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.
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 had seen on the tall, thin man. The
circuit court admitted the hat into evidence.
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.
two days after the shooting, Carter provided a statement to
detectives in her home. Within a week, detectives interviewed
Carter at a police station.
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?
[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.
* * *
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).
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
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
claim of surprise that the body [of Copeland] would be
produced here for purposes of the identification . . . just
can't be accurate. . . . There is no surprise. This is
not a surprise witness. [Green's counsel] knew that there
were plenty of people that could identify [Copeland]; and[, ]
really[, ] the only claim of surprise is, is that [Carter] is
going to be able to identify [Copeland].
(Paragraph break omitted).
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 Maryland
Rule 4-263(d)(7)(B) obligated the State to disclose during
discovery pretrial identifications of a defendant, not a
co-defendant. The prosecutor stated that Green's counsel
would be able to elicit on cross-examination that, at one
point, Carter "went so far as to say that she
couldn't identify anybody."
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.
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.
* * *
[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.
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?
* * *
[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
[GREEN'S COUNSEL:] So me asking you that, you've seen
[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
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
[GREEN'S COUNSEL:] But sometime after this case and
people were charged --
[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 --
[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.
of Other State's Witnesses
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.
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
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. Either Copeland or Green told Myers: "[J]ust
give it back." Copeland also talked to Myers's
father, Howard Steve Myers. Eventually, Gordon, Copeland, and
Green left Myers's residence.
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.
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.
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
entered his residence. Afterward, Myers's father heard a
vehicle approaching. Myers's father looked outside and
saw Copeland, Green, and another man in Copeland's black
Mustang. At the time, Green had a bushy beard. Myers's
father went outside and asked if he could help the men. The
three men asked to talk to Myers. Myers's father went
inside and told Myers that he had company, and Myers went
outside. Myers's father heard yelling, went outside, and
asked the three men what was going on. Copeland said
something along the lines of: "[N]one of [your]
business[.]" Myers's father heard Copeland tell
Myers that someone had broken into his residence. At
approximately 4:30 p.m. or 4:35 p.m., Myers's mother
arrived home. Two or three times, Myers's father told the
three men to leave, or he would call the police. Eventually,
the three men left.
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
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
testified that, the next day, on October 22, 2013, Owens went
to Copeland's residence and saw Copeland, Green, and
Kenny Howell ("Howell"), Copeland's cousin.
Copeland and Green "seemed to be very good
friends." Owens gave Copeland the handgun, which was
loaded with six bullets. In exchange, Copeland gave Owens
thirteen bags of heroin.
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
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.
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."
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.
Wisniewski ("Wisniewski") testified that, on
October 23, 2013, she was driving on Principio Road, in the
area of its intersection with Biggs Highway. Wisniewski saw a
truck parked in a driveway. A black Mustang with two
occupants was blocking the driveway. The person in the
Mustang's passenger seat was moving around.
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.
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 ...