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Green v. State

Court of Appeals of Maryland

October 20, 2017

JOHN W. GREEN, III
v.
STATE OF MARYLAND

          Argued: September 7, 2017

         Circuit Court for Cecil County Case No. 07-K-13-001914

          Barbera, C.J. Greene Adkins McDonald Watts Hotten Getty, JJ.

          OPINION

          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, 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 witness[.]"

         Here, 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.

         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"), 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.

         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 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.

         In Part 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 shooter.

         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 through December 12, 2014, and each day from December 15 through December 19, 2014. On December 8, 2014, trial began.

         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.
* * *
[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 had seen on the tall, thin man. The circuit court admitted the hat into evidence.

         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.
* * *
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

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).

         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 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."

         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.
* * *
[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.
* * *
[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. 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.

         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 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.

         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, 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.

         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 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.

         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 ...


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