Coleman v. State

CHARLES E. ORTH, Judge, Specially Assigned. In these times, crimes of violence are often drug 1 related. This appeal involves drug related crimes. The case demonstrates the dominant extent to which the rampant illicit dealings in drugs have intruded, both flagrantly and insidiously, into the life of the community and the lives of the people.

The invidious influence of drugs was fully appreciated by the Legislature when it enacted the Controlled Dangerous Substances Law, a comprehensive scheme inspired by the war against drug abuse. The General Assembly found and declared that the illegal manufacture, distribution, possession, and administration of controlled dangerous substances have a substantial and detrimental effect on the health and general welfare of the people of the State of Maryland. It is the purpose of this subheading to establish a uniform law controlling the manufacture, distribution, possession, and administration of controlled dangerous substances and related paraphernalia in order to insure their availability for legitimate medical and scientific purposes, but to ⁵⁹⁰ prevent their abuse which results in a serious health problem to the individual and represents a serious danger to the welfare of the people of the State of Maryland. Md.Code (1957, 1987 Repl.Vol.) Art. 27, § 276(a).

This case clearly shows that the unlawful purveyance of drugs is indeed a business, highly organized and ruthlessly and efficiently operated. The business here was headed by a chief executive officer who ran its daily operations, assisted by a number of lesser functionaries answering to him. The organization employed suppliers, dealers, and pushers, all working to entice new users and to supply those already hooked. The case explains the organization’s marketing techniques — how the merchandise was stashed in various places to be readily available for distribution with the least risk of detection and thievery.

There was even a logo, so that the product would be easily identified as that of the organization, thereby insuring the sanctity of the organization’s territorial domain. Of significant importance was the organization’s use of enforcers whose duty it was to keep all involved in line by actual or threatened physical punishment, which frequently took the form of the extreme sanction — death. It was this enforcement policy which made the duties of law enforcement authorities so difficult. The press has pointed out that the police are a necessary line of defense, but more is required.

Those within and without the organization, employees and innocent bystanders alike, who become aware of matters which tended to jeopardize the business or to incriminate its personnel or to interfere with its daily operations all too often are afraid to come forward. The fear suffered by some potential witnesses renders them, in effect, deaf, mute, and blind. This reluctance to report to enforcement authorities or to seek their help or to testify in prosecutions is at the heart of the questions presented by this appeal. I. Delroy (Pappy) McNeil died at the age of 24 years about 4:00 P.M. on 25 April 1988 while sitting on the steps of the ⁵⁹¹ Old Landmark Baptist Church at 818 N. Broadway in Baltimore City.

According to the Post Mortem Examination Report, the manner of death was homicide, and the cause of death was three gunshot wounds of the head, chest, and abdomen. Investigation of the homicide culminated in the arrest of Gregory Harris (Black Greg) Givens, 17 years of age, and Anthony (Buddy) Coleman, 19 years of age. They were found guilty by a jury in the Circuit Court for Baltimore City of the first degree murder of McNeil, of conspiring to violate the murder laws of this State, and of the use of a handgun in the commission of a felony or a crime of violence. Judgments were entered on the convictions. 2 The Court of Special Appeals affirmed the judgments.

Coleman v. State, 82 Md.App. 247 , 571 A.2d 249 (1990). We granted the petition of Givens and Coleman for the issuance of a writ of certiorari and denied the State’s conditional cross-petition. Givens and Coleman seek a reversal of the judgments, claiming that the Court of Special Appeals erred in upholding two rulings of the trial judge: 1) that “the trial court could withhold from the [defendants] until after the trial began, the names of the State’s key witnesses”; and 2) that “the trial court could prohibit defense cross-examination of the sole eyewitness on the question of whether he believed that he faced a mandatory sentence ⁵⁹² of life without parole, when he decided to implicate [the defendants] in these offenses.” They urge that these rulings by the trial court were not only erroneous but prejudicially so, in that they hampered the defense, intruding on it to the extent that they undermined it.

II

Md.Rule 4-263(b)(l) commands that upon request of the defendant, the State’s Attorney shall [d]isclose to the defendant the name and address of each person then known whom the State intends to call as a witness at the hearing or trial to prove its case in chief or to rebut alibi testimony; ____ Givens and Coleman made the required request. The State complied except for witnesses who had identified the defendants at a pre-trial identification procedure. The State declined to disclose those witnesses “at this time.” The State sought support of its refusal by filing a motion for the issuance of a “Protective Order” authorized by Rule 4-263(i). The Rule prescribes: On motion and for good cause shown, the court may order that specified disclosures be restricted.

The State’s request for an immediate hearing on the motion was granted. There ensued a hotly contested plenary hearing. The State tendered the showing of the required good cause through the testimony of two members of the Baltimore City Police Department — Detective Scott Keller of the Homicide Unit and Officer Thomas Marcucci of the Eastern Drug Enforcement Unit. At the time of the hearing, Keller had been a member of the Department for 12 years and for two years had been assigned to the homicide squad.

During that period, he had investigated some 50 homicides of all different types, some involving drug organizations. Marcucci had been a member of the Department for over five years, during which time he had been involved in more than ⁵⁹³ 500 arrests for violations of the narcotics laws. He testified: I have been able to conduct over 150 surveillances of actual hand to hand buys in the streets of Baltimore. I was able myself to make undercover purchases during and participate in the operation, Hollywood II, which was the undercover operation which involved video tape undercover buys using police officers.

After a probing review of his experience, training, and expertise, he was offered by the State as “an expert in the field of surveillance, identification, investigation of narcotics, and more particularly in this case, narcotic organizations.” The court accepted him as an expert in those fields. The picture painted by the two officers was appalling, all the more so because it reflected life on the street. What they depicted was within their personal experience. It was not lifted from the scenario of a TV series or the script of a movie or the plot of a novel, but was an actual accounting of events occurring in the real world, a part of everyday affairs in crime dominated neighborhoods.

The residents of those neighborhoods are trapped in an anomie and have little chance of escape. They are the victims of a vicious circle. They are forced by fear and intimidation to accept an oppressive and onerous way of life. By reason of their fear and intimidation, the ability of law enforcement authorities to assist them is, to say the least, seriously hampered.

We give a compendium of the officers’ testimony. The area around the 800 block of Broadway is a notorious place where drug deals are made. That’s where all the users come to the median strip in Broadway to get their drugs. John (Skeeter) Holt apparently considered the area to be the exclusive territory of a drug organization he headed.

The organization maintained “stash houses” in the area. Its cocaine was stored in these houses. The narcotics were packaged in clear vials. The vials were distinguished by a pink cap. “The pink cap was the trademark of [the orga ⁵⁹⁴ nization’s] cocaine.” Only the organization’s cocaine was packaged with pink caps, and all the cocaine sold in the area by the organization had pink caps on the vials.

This enabled the organization to control competition by assuring that only its drugs were being sold in the area. Givens was a member of the organization. He played a dual role. He was a runner, one who sells drugs to users, and he was an enforcer, one who inflicts punishment on those who act contrary to the interests of the organization.

He and Oswald (Pru) Trayham were responsible for “enforcing” in the organization. McNeil became the subject of Givens’ enforcement duties. The organization was aware that McNeil “would sit for hours many times and watch” where the organization put [its] stashes and then he would go steal the stash of drugs and sell it for his own profit, which angered the drug dealers. The organization’s cocaine was “pure,” but McNeil would “cut” it before selling it.

Thus, McNeil’s activities not only diminished the organization’s income, they also damaged the organization’s reputation for the quality of its merchandise. Coleman, one of the higher-ups in the organization, took steps to assuage the anger by terminating McNeil’s activities and, at the same time, providing an example to others who might be so tempted. He directed Givens “to go and take care of” McNeil. He provided Givens with a weapon.

Givens found McNeil sitting on the church steps. In broad daylight, he went up to McNeil and shot him three times. The brazen murder of McNeil was not the only illustration the officers gave of the manner in which the organization attempted to preserve its territory and to protect its interests. The murder of one Maurice Ireland was traced to Givens.

Ireland, fresh out of jail, was owed money by Holt, apparently for some drug deal. He was “very pushy for his money [about $5000] to be paid back____” At one point, “[h]e forcibly tried to get his money back ... and as a result his murder was ordered.” He was executed about a ⁵⁹⁵ block from where McNeil was slain. Givens was charged with the murder of Ireland. The media — press, radio, and television — provide clear indication that the extreme sanction employed by the drug organization here is not unusual.

A harkening of the news reports shows that unlawful drug organizations often use that means to preserve the territory they have adopted, to enforce what they consider to be their rights, and to protect their interests. The impact of this on enforcement functions, Keller explained, is that there is great difficulty in locating witnesses who will cooperate with authorities in drug related offenses. [Witnesses] are very candid, usually that they don’t want to be involved because they fear that they will be hurt in retribution for any information that they would give to us. They fear the people that are involved in the murder and they will not give us a statement, let alone come to court and testify. The officer emphasized: These cases are usually very, very difficult to make an arrest on, very difficult because there is a low level of cooperation in the community because of the fear in the community.

They fear these people. These people rule the communities through intimidation and, you know, these are citizens that just — they don’t want to be the next one laying out there in this street with nobody coming forward to testify for them. The police did, however, receive information from the witnesses who were the subject of the protective order, one of whom was an eyewitness to the shooting. It was specific information, and identification of Gregory Givens, a positive identification of Gregory Givens was made as the shooter of Delroy McNeil.

Also, there was information given relative to a conversation that was, that happened between Anthony Coleman and Gregory Givens just prior to the shooting of Delroy McNeil and also there ⁵⁹⁶ was information as to actions of both individuals, what they did right before the shooting. The witnesses agreed to testify in court, but not without reservations. Keller said: The reservations are quite obvious. The biggest concern they had when I interviewed them was their personal safety.

They are in extreme fear. They feel that if their identity is revealed that they would have to have 24 hour guard around the clock, but they feel like their life would not be worth a nickel. That’s their words, extremely difficult to get people to come forward like this in these particular type cases and to give this kind of information and even more difficult, when you do get the information, for people to want to remain anonymous and not testify in court. The officer observed that it is [v]ery unusual for a person to put themselves this up front, so to speak, and be willing to go before the Baltimore City Grand Jury and come into a courtroom in front of whoever chooses to come in here and testify against an individual like this, an individual who is already indicted on two murders.

Keller pointed out that although Givens was in jail pending trial on Ireland’s murder, Oswald (Pru) Trayham, the organization’s other enforcer, was still on the street. Also police investigation indicated that Coleman was “sending emissaries from the Baltimore City Jail to issue harm to any of [the State’s] witnesses.” Questioned as to the basis of the witnesses’ fear that they would be killed, Keller said: Because of the prior activities of this drug organization. People that have been shot and people that have been shot and killed. There are also people that have just been shot and have not died because they have crossed this particular drug organization and their death was ordered.

He explained: Now, in some particular instances the murder wasn’t complete. The person didn’t die because the hospital ⁵⁹⁷ saved them. They believe that if their identity is made known to this drug organization they are not safe wherever they may be, whether it be under our protection. The court remarked that this would be true even after they testified and the case was over.

Keller responded: Yes, it would be true. That’s true. Correct. To be quite candid, Your Honor they are hoping that once the case is over the persons being tried will be incarcerated and then we would provide [the witnesses] with a means of leaving this area.

The judge inquired if the police would provide the witnesses with new identities. The officer replied the police did not have that capability, but, combined with the State’s Attorney they would “do everything we can to help them leave the area.” Givens and Coleman did not offer evidence. They relied on the insistent objections made by their counsel during the course of the State’s direct examination of the officers, and on their counsel’s probing cross-examination and zealous arguments. The hearing judge obviously determined that the officers’ testimony was credible.

She concluded that the fears for the safety of the witnesses were well warranted. She weighed the testimony of the officers and found that “the State has shown sufficient evidence that the lives of the witnesses may be endangered.” The judge expressed reluctance “in hampering the defense in any way in the preparation of their case,” but, she concluded, “I cannot deny this motion.” She suggested, however, that any burden that non-disclosure may place on the defense could be allayed by making the names of the witnesses available to defense counsel two weeks prior to trial, and by arranging that defense counsel could then question the witnesses out of the presence of the State’s Attorney. But defense counsel were forbidden to disclose the identity of the witnesses to Givens and Coleman or any other person. In any event, the witnesses’ identity would become known when they were called by the State to testify at trial.

The hearing judge made clear that she would ⁵⁹⁸ consider at any time prior to trial any reasonable request that is made for time to pursue follow-up to any information that is obtained as a result of the interview. She emphasized, “I am open at any time to considering reasonable requests from the defense for more time, more access or any other reasonable request.” She pointed out: I am still in control of this particular Order so that I can certainly modify it in the way that I have indicated to you that I would. She issued an order which was in accord with her suggestions. It read: Upon a hearing in open court on September 28, 1988 all parties having been present, it is this 15th day of November, 1988 by the Circuit Court for Baltimore City, State of Maryland, ORDERED, that pursuant to Maryland Rule 4-263(c)(3), (i) and good cause found, the State shall not provide the defense with the names and addresses of any civilian witnesses, and shall provide only the name(s) of any such witness(es) two weeks before the day of trial.

It is further ORDERED, that the State shall provide defense counsel an opportunity to question any such witness(es) two weeks before trial at a place to be designated by the State’s Attorney’s Office within the confines of either of the City Court Houses and at a time to be set by the State’s Attorney’s Office. The State’s Attorney’s Office through its representative shall advise any witnesses) the reason for the meeting with defense counsel and that they, the witness(es) may talk to defense counsel or that they may refuse to talk to defense counsel but the State’s Attorney or his representatives shall not remain at the interview and, It is further ORDERED, that after such disclosure, counsel for the defendants or their agents shall not directly or indirectly disclose the identities of the State’s witness(es) to anyone. ⁵⁹⁹ It is ORDERED, that the State shall provide a copy of a criminal record (if one exists), any statements or any grand jury minutes (if any exist) for any such witness(es). Subject to further order of the Court.

III

Givens and Coleman were tried together before another judge. When the case was called, defense counsel attacked the protective order. There was no suggestion that there had been other than full compliance with the order on the part of the State, and it did not appear that defense counsel had requested the hearing judge to grant additional time to pursue any information obtained at the interview of the witnesses. Nevertheless, defense counsel moved to dismiss the indictments.

They claimed that, because of the protective order, the defendants had been denied their right of confrontation, had not been afforded due process, and had been deprived of fundamental fairness. The rationale of those claims, advanced and argued by Givens’ counsel (who had not participated in the hearing on the motion for the protective order) and adopted in toto by Coleman’s counsel, was that “the State’s whole case is going to rise and fall on the two witnesses who are being protected by this protective order.” Not until the trial had commenced would the defendants be apprised of the identity of the witnesses so that defense counsel could ask the defendants “what do you know about this person, what dealings do you have with this person, who else knows about these dealings with this person, where can I find these other people who may or may not know about these things.” Furthermore, Givens’ counsel asserted: I don’t have a hundred person law firm. I can’t send a couple of associates out or send some investigator out to take care of this case, investigate it as the case goes on like they do in TV and they come up with all these wonderful things. In real life that doesn’t work because of the practicality, [the] effects of being in a business and ⁶⁰⁰ only having twenty-four hours a day and only being able to work so many hours that day.

The trial court appreciated the defense’s problem. He interpreted counsel’s remarks to indicate that counsel was troubled because the [m]ost important part of the State’s case you cannot discuss with your client, get any input from your client to see if your client may have information that could lead you to other information that may be helpful in your defense. The court believed that the “issue goes to fundamental fairness and the right of the defendants to receive a fair trial.” The Assistant State’s Attorney recognized, of course, that the defendants had a right to a fair trial, but, he observed, “a balancing act” is involved also, and, he declared, “the witnesses for the State have a right to life, and, that is, in fact, the key issue here.” Coleman’s counsel added that if the court did not dismiss the indictments, he would request that we be given a great deal of latitude timewise in order to chase down whatever leads come out during the testimony, if any do come out, and in conferring with our clients. The court agreed with the State’s position that balancing was involved.

The court said that it has to certainly balance the right of the State to put on its case and the right to life of the State’s witnesses against the right of the defendants to have a fair trial and to be able to prepare for their trial. Under the circumstances, the court concluded, the balance tipped in favor of the State. The court denied the motion “at this point.” The court, however, also acceded to the suggestion of defense counsel. The judge made plain that after the cat is out of the bag or, in other words, after the witnesses have testified, if counsel for the defendants, as officers of the Court, find that there is a need for a day or two to track down additional witnesses, or to do further investigation to determine any possible motive or ⁶⁰¹ bias on behalf of these witnesses, the State’s witnesses, then I will certainly permit that under the circumstances of this case.

The trial proceeded in due course.

IV

A. The general rule controlling the disclosure of the