Green v. State

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. ⁵⁷ 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 ⁵⁸ 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 [[Image here]] 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 ⁵⁹ 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; * * * ⁶⁰ (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 ⁶¹ 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 ⁶² 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 coconspirators is almost as important as identification of the defendant within the court process. * * * We intend to have Ms. Carter specifically identify—this is the first prong of this—identify Mr. 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. So that’s what we plan to do, and I know counsel has an objection.

Defense counsel stated that the State was required to advise prior to trial “that they’re going to have a witness who identifies the co-defendant.” He then objected to bringing Mr. Copeland into court to stand next to appellant and ask Ms. Carter “are these the same two people,” which “essentially [is] an identification of [appellant], which no one said that anyone is going to identify [appellant].” Counsel stated: So I think, first of all, there is a discovery problem in that we have no notice that this is going to happen. I mean, that’s—I think that’s been basically admitted that he’s not even sure if she’s going to do it, but clearly they—someone had some idea that she’s going to come in here and say later on that she’s come to understand and now she’s able to identify him. So there’s that issue. And then to have—I mean, I understand that you can perhaps have people for builds and such; but that’s not what we’re doing here.

We’re doing this to, one, identify Mr. Copeland; two, he intends—I mean, this is—I don’t think he actually said it, that’s what he’s going to do. The court ruled that there would not “be a stand up next to the defendant and have them sized up.” It then asked the State why it had not disclosed this information in discovery. The prosecutor replied: ⁶³ In terms of discovery the state has to turn over that which the state has, and civilian witness—more so than police offices [sic]—civilian witnesses every day get on the stand and say things when they see it for the first time. They say things different and supplemental, additional to what they said during the interview process, and that is part of the pretrial process in terms of the state and the defendant interviewing witnesses and preparing for it, to know these things in advance....

The state has to—for discovery purposes, the state has to turn over that which the state is in possession of under the rules. Now when there are statements, written statements, recordings, photos lineups, identification processes like that, we’re required to turn them over to the defendant. Excuse me. The reality is, is that Ms. Carter is capable as we hear now from her testimony, of testifying to whether or not she recognizes the defendant or not; and that is not something that in and of itself has to be discovered [sic] to the defendant here.

I note that this is co-defendant, not the defendant himself. The rules talked about an identification of the defendant. They don’t contemplate the identification of other people at the scene. The court then asked if Ms. Carter had given a written statement.

After confirming that there was a report, and that defense counsel had a copy, the colloquy continued, as follows: THE COURT: So you have that information? [DEFENSE COUNSEL:] Yes, your Honor. THE COURT: Sufficient to cross the witness? [DEFENSE COUNSEL:] Yes, your Honor. THE COURT: Assuming on my part that her testimony is that her recollection has changed—well, you’ve said sufficient to cross. [DEFENSE COUNSEL:] I still think an identification of the co-defendant, whenever you get notice of it—clearly there was some notice. I mean, discovery is an ongoing ⁶⁴ obligation.

That’s something that should be given before trial. THE COURT: What can you cite in support of that? [DEFENSE COUNSEL:] Well, we filed a discovery motion asking for it, and I—I mean—and essentially I would argue that the identification of the co-defendant in this case is— because he’s a co-defendant is essentially identification—the two go part and parcel on this case. The prosecutor then stated that the co-defendant, Mr. Copeland, was interviewed and seen by “plenty of other people,” and defense counsel knew that “the co-defendant existed. There is no surprise.

This is not a surprise witness.” He continued: [T]he only claim of surprise is, is that this witness is going to be able to identify him. But as the court correctly pointed out, which was part of what the state’s argument was going to be, is that the defendant has the opportunity to cross-examine and get out of her the fact that she did not—she actually went so far as to say that she couldn’t identify anybody. [[Image here]] And so [defense counsel] will be able to adequately cross-examine her and make the appropriate arguments after she identifies, if, in fact, she does identify. [DEFENSE COUNSEL:] I just note that there’s a slight difference between identification of co-defendant by an eyewitness versus just witnesses as to who he is. [PROSECUTOR:] I think everybody we’ve listed who’s going to identify him is an eyewitness on some level. I don’t see the difference. The court then issued its ruling.

It stated that it had “looked again at both the discovery request and the response,” and it was going to permit the show up, but control it “very carefully,” noting that Mr. Copeland was “not to come within the well of the courtroom. That means he can stand six feet behind you and next to Detective Lewis.” ⁶⁵ After the jury returned, Mr. Copeland was brought into the courtroom. The following then occurred: [PROSECUTOR:] Ms. Carter, did you have an opportunity to take a look at the individual that was in this courtroom? [MS. CARTER:] Yes. [PROSECUTOR:] Did you recognize him? [MS.

CARTER:] Yes. That was the person that was wearing the hat. [PROSECUTOR:] Okay. When you say the person that was wearing the hat— [MS. CARTER:] That was standing outside the car door on the driver’s side. [PROSECUTOR:] Okay. * * * [PROSECUTOR:] Just a point of clarification, Ms. Carter.

When you say outside the car door, are you talking about the driver’s side of the Mustang? [MS. CARTER:] Yes. The door was open, and he was standing inside—with the door open but inside the door, one foot in the car, one foot out of the car. [PROSECUTOR:] Okay. And as you previously testified about a taller skinnier one and a shorter stockier one ... which of the two— [MS.

CARTER:] That’s the taller thin one. On cross-examination, defense counsel questioned Ms. Carter about her discussions with the police “closer to when [the incident] happened.” She denied telling the detectives two days after the incident that the person with the snowflake hat shot into the car. She agreed that she told the detectives, approximately a week later, that she did not get a very good look at the people as she drove by because she was worried about their vehicle in the road. She was unable to give any further description of the people involved, other than that there were two men, one who was short and stocky, and the other tall and thin, and that one was wearing a hat.

She noted, however, that “memories start coming back after I talked to ⁶⁶ them, and I didn’t talk to them until now. I’m just telling you what I saw that day and what I remember I saw that day.” With respect to her identification in court of Mr. Copeland, counsel asked if she had “ever been shown a photo of him before.” The following then occurred: [MS. CARTER:] I just 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 he looked at me and I looked at him as I was going by because he was right there. [DEFENSE COUNSEL:] Have you seen his picture in the newspaper or anywhere since this happened? [MS.

CARTER:] Yes, yes, in the Cecil Daily. [DEFENSE COUNSEL:] Oh. [MS. CARTER:] But I knew when [I] saw 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. [DEFENSE COUNSEL:] When you—since—when was the first time that you realized, seeing a picture, that you knew who that person was? [MS. CARTER:] When I saw it probably in the paper.

I said, oh, wow, that’s the guy that was wearing the hat, that’s the guy that was standing outside the door. [DEFENSE COUNSEL:] So like a year ago? [MS. CARTER:] ... I’m not sure when they put it in the paper. [DEFENSE COUNSEL:] But sometime after this case and people were charged— [MS. CARTER:] Yes.

Ms. Carter testified that she did not call anyone to tell the detectives that she had seen the newspaper photo of one of the men involved, noting that she “didn’t want to be here today.” She told the detectives that she knew who Mr. Copeland was when she “went over ... everything again with them, what I saw—everything that I saw that day.” ⁶⁷ c. Preservation The State contends that, for two reasons, appellant failed to preserve his discovery violation claims for this Court’s review. First, it asserts that, pursuant to Maryland Rule 4-323(a), a party must object to the admission of evidence “at the time the evidence is offered or as soon thereafter” for the claim to be preserved, and it argues that, although appellant “objected earlier on discovery grounds ..., he did not object at the time [Ms. Carter] testified about her identification.” The State analogizes appellant’s objection to a motion in limine, arguing that, when the court denies such a motion to exclude evidence, a party can challenge this ruling on appeal only if he or she makes a contemporaneous objection at trial when the evidence actually is introduced. Because appellant did not do so in this case, and he did not “ask for, or receive, a continuing objection regarding [Ms.] Carter’s identification testimony,” the State argues that this issue is not preserved for this Court’s review.

Second, the State contends that appellant’s objection below was based only on the argument that the State was required to disclose in discovery an identification of the defendant, which encompassed Ms. Carter’s identification of Mr. Copeland as a co-defendant. It asserts that the argument on appeal, to the extent that it encompasses additional contentions, is not preserved for this Court’s review. Several rules are relevant to the State’s preservation arguments. Initially it is well-established that Maryland’s appellate courts ordinarily will not consider “any issue ‘unless it plainly appears by the record to have been raised in or decided by the trial court.’ ” King v. State, 434 Md. 472, 479 , 76 A.3d 1035 (2013) (quoting Md. Rule 8-131(a)).

Moreover, pursuant to Maryland Rule 4-323(a), “[a]n objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent.” Here, we are not persuaded by the State’s first argument, that defense counsel failed to preserve the argument that a ⁶⁸ discovery violation barred evidence of Ms. Carter’s identification given the failure to object to Ms. Carter’s ultimate testimony identifying Mr. Copeland. The Maryland appellate courts have addressed, and rejected, similar arguments, particularly where the testimony is admitted minutes after a motion in limine ruling. See Norton v. State, 217 Md.App. 388, 396-97 , 94 A.3d 110 (2014) (After denial of motion in limine to exclude evidence, requiring a defendant to “make ‘yet another objection only a short time after the court’s ruling to admit the evidence would be to exalt form over substance.’ ”) (quoting Clemons v. State, 392 Md. 339, 363 , 896 A.2d 1059 (2006)), aff'd on other grounds, 443 Md. 517 , 117 A.3d 1055 (2015). See also Dyce v. State, 85 Md.App. 193, 198 , 582 A.2d 582 (1990) (“Given the temporal proximity between the ruling on the motion in limine and the prosecutor’s initial inquiry on cross-examination we shall exercise our discretion under Md. Rule 8-131 and consider the issue, notwithstanding the lack of literal compliance with Rule 4-323(a).”).

Here, when the State, during its direct examination of Ms. Carter, stated that it intended to have Ms. Carter attempt to identify Mr. Copeland in court, defense counsel objected. The court considered the parties’ arguments, and it permitted the State to proceed. Although defense counsel did not object when the State, immediately thereafter, had Mr. Copeland brought into the courtroom and asked Ms. Carter if she recognized him, we conclude that this issue was sufficiently preserved for this Court’s review. The State’s second preservation argument, however, has merit.

Appellant’s argument below did not specifically mention Rule 4-263, and in no way can it be construed as arguing a violation of Rule 4-263(d)(3), (6), or (9). Appellant’s argument regarding a discovery violation was limited to the argument that the State was obligated to disclose the identification of a co-defendant, particularly when it “essentially” was an identification of appellant in this case. Under these circumstances, we agree with the State that appellant’s additional claims on appeal are not preserved for this Court’s review. ⁶⁹ Accordingly, we will limit our analysis to the issue raised below, and we will not consider the contentions that the State’s failure to disclose Ms. Carter’s identification violated discovery obligations pursuant to Rule 4-263(d)(3) (requiring disclosure of “each State’s witness [the prosecution] intends to call” to prove its case); (d)(6) (requiring disclosure of information “that tends to impeach a State’s witness”); and (d)(9) (allowing inspection of “photographs, or other tangible things”). Without in any way suggesting that there was a violation of Rule 4-263(d)(3), (6), or (9), our review will be limited to whether the circuit court erred in allowing the identification procedure due to a violation of the State’s discovery obligations pursuant to Rule 4-263(d)(7) (regarding disclosure of a “pretrial identification of the defendant by a State’s witness.”).

D. Standard of Review In addressing a claim that the circuit court erred in admitting evidence based on a discovery violation, the standard of review by the appellate court depends on the rationale of the circuit court. If the circuit court finds that there was a discovery violation, but it determines that exclusion of the evidence is not the appropriate sanction, we review that decision for an abuse of discretion. See Williams, 364 Md. at 178 , 771 A.2d 1082 (“The remedy ... for a violation of the