Green v. State

JOHN W. GREEN, III v. STATE OF MARYLAND

No. 4

COURT OF APPEALS OF MARYLAND

Argued: September 7, 2017

September Term, 2017

October 20, 2017

MANDATORY DISCLOSURES DURING DISCOVERY - PRETRIAL IDENTIFICATION OF A CO-DEFENDANT - MARYLAND RULE 4-263(d)(7)(B) - Court of Appeals held that, as a general matter, Maryland Rule 4-263(d)(7)(B)—which requires State to disclose to defense during discovery, without necessity of request, "[a]ll relevant material or information regarding . . . pretrial identification of the defendant by a State's witness"—does not, by its plain language or history, require State to disclose pretrial identification of co-defendant. Court concluded, however, that pretrial identification of co-defendant is "relevant . . . information regarding . . . pretrial identification of the defendant" under Maryland Rule 4-263(d)(7)(B) where pretrial identification of co-defendant is equivalent of pretrial identification of defendant as person responsible for crime. Here, eyewitness's pretrial identification of co-defendant as person who was not shooter was equivalent of pretrial identification of defendant as shooter, as State's theory was, and its evidence showed, that defendant, co-defendant, and person killed were only people at scene of shooting, and person killed was shot by one of the two other people present.

Circuit Court for Cecil County

Case No. 07-K-13-001914

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

Opinion by Watts, J.

Barbera, C.J., McDonald and Hotten, JJ., dissent.

"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. Thefollowing 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 ofCopeland 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 circuitcourt, 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 facingeach 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

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