Green v. State

• Decision Date: 01 December 2016
• Docket Number: No. 490 Sept. Term, 2015,490 Sept. Term, 2015
• Citation: 149 A.3d 1159,231 Md.App. 53
• Parties: John W. Green, III v. State of Maryland
• Court: Court of Special Appeals of Maryland

231 Md.App. 53

149 A.3d 1159

John W. Green, III

v.State of Maryland

No. 490 Sept. Term, 2015

Court of Special Appeals of Maryland.

Filed: December 1, 2016

Jeffrey M. Ross (Paul B. DeWolfe, Public Defender, on the brief) all of Baltimore, MD, for Appellant.

Gary E. O'Connor (Brian E. Frosh, Atty. Gen., on the brief) all of Baltimore, MD, for Appellee.

Meredith, Graeff, Friedman, JJ.

Graeff, J.

A jury 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 a handgun.

On 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?

For the reasons set forth below, we answer these questions in the negative, and therefore, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

On 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.

Appellant 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.¹ An altercation ensued, and Mr. Meyers was shot and killed.

Thus, 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.²

Doris 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.”³ She described the other person as a “short stouter male,” who was wearing a “hoodie” and appeared to be a “white male.”⁴ As she drove past the Mustang, Ms. Carter observed “the short stout person shooting into” Mr. Meyers' truck.⁵

Near 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.

As indicated, appellant was convicted of murder and related crimes. This appeal followed.

DISCUSSION

I. Identification

Appellant 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.

The 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.

A. Discovery Generally

Maryland Rule 4–263 sets forth the discovery obligations of prosecutors in circuit court criminal trials.⁶ 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 another witness;

* * *

(G) the failure of the witness to identify the defendant or a co-defendant;

(7) Searches, Seizures, Surveillance, and Pretrial Identification. All relevant material or information regarding:

* * *

(B) pretrial identification of the defendant by a State's witness;

* * * (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 ....

In Williams v. State , 364 Md. 160, 171, 771 A.2d 1082 (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, 757 A.2d 796 (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 explained:

[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, 771 A.2d 1082 (citations omitted).

B. Proceedings Below

The 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 occurred:

[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, please?

[DEFENSE COUNSEL:] I'm going to object.

The 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^[7]—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. Copeland.

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

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