Lancaster v. State

ADKINS, J. In this appeal we examine the conflict between a criminal defendant’s constitutional right to a zealous defense and the State’s legitimate concern for the safety of its witnesses. We are asked to decide whether appellant Jovon Brian Lancaster was denied his constitutional rights to counsel and a fair trial by a pre-trial protective order that required defense counsel to delay disclosing to him until the day of trial the names, addresses, and statements of certain prosecution witnesses. A jury in the Circuit Court for Montgomery County convicted Lancaster and his brother of two counts of robbery with a dangerous weapon, two counts of second degree assault, one count of first degree robbery, and one count of conspiracy to commit robbery with a dangerous weapon. Lancaster challenges these convictions, raising two related issues arising from the protective order: I. Did the [motion court] abuse [its] discretion by granting a protective order that prevented defense counsel from disclosing to appellant until the start of trial the names and statements of key witnesses and also allowed the State to withhold from defense counsel the location of certain witnesses, when the State failed to produce sufficient evidence that full disclosure of this information presented a substantial risk of harm to any potential witness?

Did the hearing [court’s] abuse of discretion in granting a protective order interfere with the ability of trial coun ⁵ sel to conduct a defense and communicate effectively with the appellant resulting in the denial of the appellant’s right to counsel under the Sixth Amendment of the United States Constitution and Art. 21 of the Maryland Declaration of Rights? In the circumstances presented here, we conclude that there was neither abuse of discretion nor constitutional error. FACTS AND LEGAL PROCEEDINGS The Crimes At trial, the State presented evidence that Jovon Lancaster and his co-defendant brother, Pablo Guillermo Lancaster, were involved in a series of drug-related incidents that culminated in a home robbery. 1 On July 13, 2005, Michael Ford and Jason Friday used a counterfeit $100 bill to buy ecstasy pills from “Sukie,” Jovon Lancaster’s girlfriend, who lived across the street from Ford’s house at 17909 Shotley Bridge Place in Olney. The next morning, July 14, Sukie called Friday to complain about the counterfeit money.

When Friday rebuffed her, she told him that two drug dealers were coming to his house. A couple of hours after Sukie’s call, two men, whom Friday later identified as Jovon and Pablo Lancaster, visited Friday’s home. Friday’s father escorted them into the home. The pair demanded money for the prior night’s transaction, and asked Friday to “step outside” when his father “kept asking what was going on.” Friday went to the porch, and promised them that he would give them the money when he had it.

The pair left, but came back to get Friday’s phone numbers. Once inside, one of them picked up Friday’s cell phone from the table and left with it. ⁶ Michael Ford also received a call from Sukie on the morning of July 14. She was “angry, upset and confused.” Ford exchanged calls with Friday, telling his friend that he was not going to give him any money, at which point the call terminated abruptly. Shortly thereafter, Ford received another call from Friday’s cell phone.

When Ford answered, an unknown male said, “You got our money.” In a second call, the same man said he was on his way to Ford’s house. Minutes later, the same caller informed Ford, “I’m outside.” Ford enlisted his brother C.J.’s help, and together they walked out to the car parked on the street in front of their house. Two men identified as the Lancasters sat in the car. They told him that Friday gave them fake money and that Friday sent them to him.

During the encounter, Michael Ford called Friday’s cell, which rang in the possession of the man in the back seat, who identified himself as “Juvenile.” Over the next several days, Ford received at least five calls from the same man demanding repayment and/or asking where to find Friday. On July 18, Ford received three calls from the same caller, again demanding payment. On the third call, the caller said, “I’m on my way to your house.” Presently, a group of men, some wearing masks and carrying firearms, came to the Ford home. The Lancaster brothers were part of this group; neither was masked and both carried handguns.

Neither Michael Ford nor his mother Rosetta Ford were home at the time. Michael’s brothers C.J. and Deandre were outside. The men patted them down, brandished a shotgun, then directed them inside, where the Lancasters took their wallets, cell phones, and money. The robbers seated both brothers on a couch with an unidentified woman, where they remained while the robbers went through the house, taking two stereos, jewelry, and clothes.

Upon returning home after her night shift, Rosetta Ford learned what happened and reported the incident to police. On August 26, 2005, Pablo and Jovon Lancaster were arrested for robbery and related crimes. ⁷ Hearing On Protective Order On December 15, 2005, the State moved for a protective order, seeking to withhold from the Lancasters and their counsel the current location of victim witnesses, and to prevent defense counsel from sharing with their clients before trial the names, criminal records, prior statements and grand jury testimony of certain non-victim civilian witnesses (the “protected witnesses”). Defense counsel filed written opposition to the motion. At a January 12, 2006 hearing on the motion, the State explained that it was seeking protective orders with respect to three different categories of witnesses: (1) victims; (2) non-victim eyewitnesses, i.e., persons who participated in the crime with the Lancasters; and (3) other fact witnesses who were neither victims nor eyewitnesses, i.e., persons who had information that tied the Lancasters to the armed robbery but were not present while it was committed.

The State presented the testimony of Det. Eric A. Mason, the “primary investigator,” as grounds for the protective order. Mason had been assigned to the robbery section of the Montgomery County Police Department’s major crimes unit for one year; he had 24 years experience in the Department before that. On direct examination, Mason testified that some witnesses feared retaliation by the Lancasters: [Prosecutor]: How many witnesses would you say you’ve interviewed in the course of your investigation of this crime? [Det.

Mason]: Numerous, I would probably say, ballpark of maybe ten. Q: Okay, and of those witnesses have any of them expressed any concerns regarding their involvement in the case, talking to you, et cetera? A: Yes, sir. Q: Okay.

What kind of concerns on a generalized fashion [have] those witnesses articulated to you? ⁸ A: Fear that retaliation will be made against them. Fear that they would come to their homes----That they knew where they lived at---- Q: And is the fear specific to the two defendants or is it to go to known associates of the defendants as well? A: The defendants and their associates. Q: Okay.

And within these ten witnesses is there a smaller group of those witnesses who expressed particularized fears because of specific threats they’ve perceived from these defendants? A: Yes. (Emphasis added.) When counsel for both Lancasters expressed concern about their ability to cross-examine the protected witnesses regarding the allegation of specific threats, the prosecutor assured court and counsel that full disclosure of the identities, prior statements, and criminal records of all witnesses, including the protected witnesses, would be made to defense counsel as soon as the hearing concluded. The State then proceeded with its direct examination of Det.

Mason regarding the protected witnesses: [Prosecutor]: This subset of witnesses ... have they told you about specific threats they’ve perceived from the defendants? [Det. Mason]: Yes. Q: Okay. And has this subset of witnesses perceived those threats to be in relation to their potential participation in this matter, and your investigation?

A: Yes. Q: ____ The crime charged,____ allegation involves a home invasion, correct? A: Yes, sir. Q: And does it involve people in addition to the two defendants here?

A: Yes. Q: Okay. It involves, in fact, five or six people, correct? A: Yes. ⁹ Q: And is there an allegation that firearms were involved in that home invasion.

A: Yes. Q: Okay. And are you aware of other violent conduct by the two defendants that has been charged against them? A: Yes....

Q: Has that violent conduct involved firearms? A: Yes.... Q: Do you know if that violent conduct that involved firearms has resulted in indictments against the two defendants? A: Yes.

Q: Okay. And is it for a carjacking for both of them? A: Yes. Q: And armed robbery for both of them?

A: Yes, sir. Q: Okay. And are you aware about the subset of witnesses that we’re talking about, are they aware of that conduct by the defendants? A: Yes.

Q: And this subset of witnesses, ... have they made known to you their awareness of other violent conduct by the defendants? A: Yes. (Emphasis added.) On cross-examination, defense counsel established that some of the protected witnesses have a criminal background and that Det. Mason interviewed each witness independently from the others.

Counsel then unsuccessfully attempted to question Mason about the specific nature of the alleged threats against prosecution witnesses. Counsel for Pablo Lancaster asked the detective, “Can you give me a detail of what they perceived as a threat. What articulable fact they would have had, that they could have perceived as a threat?” The prosecutor objected, arguing that “the response to that question is going to further any attempt by the defendants to identify this witness.” The court suggested that the question be re ¹⁰ phrased, noting that “it is a fair concern that” information regarding “the substance of the threats” could “allow a determination as to ... the identity of those individuals.” Defense counsel then continued: [Counsel for Pablo Lancaster]: This is rather ethereal here but let me ... try it this way____[Y]ou were not personally present during any threats made to any of these subset of witnesses, correct? [Det. Mason]: No. Q: So, you would have heard that they perceived the threat, correct?

A: Yes. Q: Were any of them direct contact with either one of these two defendants?---- [D]id they say that, to you, it was made directly by one of these two gentlemen? A: One of them, yes. Q: And____which one of the defendants ... ? [Prosecutor]: And I’m objecting....

I think we’ve established a very fine perimeter around what this threat is specific threat [sic], the witness perceived it, and perceived it from one of the defendants. I think any question beyond that is going ... too close to the identification of who these witnesses are. The Court: All right, I’ll sustain the objection. [Counsel for Pablo Lancaster]: Can you tell me a little bit more about the nature of the threat, verbal, look, glance, shrugged shoulders, pointing fingers, telephone call, letter, what’s the nature of the basis of their perceived threat? A: Yerbal.

Q: Okay. And would the answer be the same if I asked you what their perceived threat was from, what you call, associates of the defendants? ¹¹ A: Just prior history____It’s just prior history of knowing of the group they hung with. What they are capable of doing. Q: Okay, so they’re telling you I’ve been involved with these people in the past then basically, I guess, I’m afraid of them in the future, right?

A: Basically, yes, sir. Q: Okay. Now none of these people was hurt or harmed in any way up to the time you talked to them and you testified in court today. A: Not that I know of.

Q: Nobody had to move, at least these witnesses, or anything? A: It depends on what witnesses you’re talking about. Yes, some of them moved. (Emphasis added.) Next counsel for appellant Jovon Lancaster continued the cross-examination of Det.

Mason. After establishing that Mason was not aware of “any threats by the associates,” defense counsel attempted to learn more about the threat allegedly made by one of the defendants. He asked when that threat was made, and whether any threat had been made while both defendants were incarcerated pending trial. The court sustained objections to both inquiries, despite defense counsel’s insistence that this information “goes to their dangerousness.” Cross-examination continued: [Counsel for Jovon Lancaster]: When the home invasion allegedly occurred, the invaders said things to the victims, in the home, correct? [Det.

Mason]: Yes. Q: ... The threat, is it from an event other than that conversation? A: Yes....

Q: The people that said that they were concerned about threats from the associates, from retaliation from the associates, did they know the associates, or are they just worried about the associates in general? ¹² A: No. (Emphasis added.) Defense counsel argued that the prosecution had not provided enough specific information about the threats to justify the protective order. Counsel for Jovon compared the record to Coleman v. State, 321 Md. 586 , 583 A.2d 1044 (1991), in which the motion court “knew what the specific statements by various people at various times” were and then narrowly tailored the protective order to prevent only disclosure of identity and contact information, not the substance of the witnesses’ statements. He complained that there was insufficient information “for the court to make a rational, balanced, determination in exercising [its] discretion.” In counsel’s view, the generalized nature of the allegations means that “we don’t know if it really was a threat. We just know that they perceived it as a threat.

And I don’t think that’s ... enough to grant that relief given the constitutional issues at point in this case.” The motion court ruled it was “satisfied that there is a significant issue with respect to the safety and welfare of these witnesses given the nature of the testimony, the nature of the allegations and the ... reasonable fear with respect to their personal safety and prospect of retaliation by these two defendants or individuals on behalf of the defendants, in spite of the fact that they are locked up.” The court granted the motion, distinguishing between victim witnesses and non-victim eyewitnesses, and ordering as follows: • Victim witnesses: The State was required to give defense counsel the names of victim witnesses, but allowed to withhold current addresses, subject to the State making these witnesses available to defense counsel as set forth below. • Non-victim eyewitnesses: The State was ordered to turn over to defense counsel, immediately following the hearing, the names, addresses, prior statements, charging documents and officer interview notes relating to this case, as well as the prior criminal records of these witnesses, and to make them available to defense counsel as ¹³ set forth below. But defense counsel was ordered not to disclose this protected information to either defendant before the trial date. • Witness availability: The State was ordered to produce all witnesses before trial at its office for defense counsel to have a chance to meet with them, at least two weeks before trial. Each witness could decide whether he/she wanted to speak with defense counsel. The motion court then addressed defense counsels’ complaint that the order against discussing the substance of the witnesses’ statements with their clients would interfere with their representation.

Specifically, counsel argued: [A]ny time someone takes a plea in a case there’s always the question by the court, have you had enough time to talk to your lawyer about this case, have you discussed possible defenses, et cetera. So, I’m a little bit troubled ... that in order to discuss the case and have a theory of defense with a ... client that’s going to trial, we need to say this is the evidence the State has produced against you. And it consists of a statement of a ... witness that says this about what you did. And this "witness says he was ... in a position to say what he did.

So, I’m bothered and feel extremely curtailed by my ability to effectively communicate with my client, theorize a defense in the case, and actually represent him effectively at trial, if I can’t actually ... say look there’s three witnesses that are going to slam dunk you.... They’re going to say they did this.... The court agreed with the prosecutor that immediate disclosure of the identity and statements of all witnesses to defense counsel after the hearing would give counsel an opportunity to assess whether the protective order actually created any of these theoretical conflicts. The court assured defense counsel that it would reconsider its order if that occurred: [T]hat full discovery is being given to you with the understanding that it’s essentially not going to be disclosed to your clients.

And then after you review it, then you’ll have an opportunity to discuss with [the prosecutor] any ¹⁴ agreement that can be reached that would allow you to further disclose that information____ If after your review of the discovery, there is information you feel would, that you would be able to discuss with your clients, that would not conflict with the protective order, and it would not cause a concern with respect to the safety to the individuals involved, then the protective order would be modified to allow you to disclose that. (Emphasis added.) A written order followed stating, inter alia, that “if defense counsel desire further guidance from the Court or a reconsideration of this Order they may seek such relief from the Court.” Trial The Lancaster brothers were tried over three days. The only victim eyewitness to testify was C.J. Ford, who identified both Lancasters as participating in the home robbery on August 18-19. He testified that about two weeks after the robbery, he saw Pablo at a bus stop.

Pablo approached him and “asked [him] about the police and his brother and [C.J.’s] brother[.]” C.J. told him, “ ‘I haven’t talked to my brother,’ ” because C.J. “was mad at [Michael] about what happened[.]” He also told Pablo that he did not “know anything about ... what was going on between ... [Michael Ford] and his brother.” The State presented four witnesses whose identity and statements had been subjected to the protective order, all of whom had been arrested or charged with involvement in the robbery. • Justin Navarro and Milton Doley accompanied the Lancasters during the robbery; both accepted plea deals that reduced their charges and sentences. During the robbery, Navarro carried a shotgun. • Randall Gilmore saw the Lancasters with Hutson, Sukie, and three other men on the evening of the robbery, but he declined Pablo’s invitation to accompany them in order to ¹⁵ “make a move.” He was arrested in connection with the robbery, but charges were later dropped. • Stephanie Hutson, who was dating Pablo at the time of the robbery, was at the Ford house just before the robbery, but left with Sukie. They went to a park and smoked marijuana, then were picked up after the robbery in a car occupied by Pablo, Jovon, Navarro, and Doley. While riding in the car, she heard the Lancasters and their accomplices say “how everybody in the house was scared and they just kind of punked out and followed what everybody said.” They were “joking” about taking a CD player, cell phone, and credit cards.

The charges against Hutson were nol prossed. Two of these non-victim eyewitnesses testified about pretrial contacts with the Lancasters while this case was pending. Doley saw Jovon while Doley was in jail on an unrelated burglary charge. Jovon asked him “if the police talked to [him] about what happened ... [t]he night in Olney.” Doley told him he had not been approached, because police did not learn about his involvement until later.

Hutson testified that in August, before Pablo was arrested, she had “[a] few” conversations with him about the fact that Det. Mason was contacting her. Pablo “told [her] to say that [she] didn’t know anything” and that she “better not say anything.” After she, Pablo, and Jovon had been arrested, she saw the brothers again while they were waiting to appear for their preliminary hearings via video monitor. As she walked into the waiting room, Pablo was still in his holding cell, but he called “to get [her] attention just yelling AFALOVA and [her] name.” This was shorthand for “all for one love one for all[,]” which the Lancasters both used in “referring to people, their close friends, family.” Pablo had the saying tattooed on his forearm.

Jovon also yelled out her name and “AFALOVA.” Later, when Pablo was released from his holding cell, he “came over and sat in front of [Hutson] and started talking to [her].” She testified, “He was saying that I better not be ¹⁶ snitching. I hope you’re not saying anything. That you got nothing to say. You better watch out.” In response, Hutson asked an officer to move her to a different room.

When she was leaving, Pablo said “[t]o say that [she did not] have anything to say. There was nothing to get them on.” DISCUSSION Coleman And Morgan: The Limits Of Pre-trial Discovery As a general rule, there is no constitutional right to pre-trial discovery in criminal cases, “and Brady [v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963)] did not create one[.]” Weatherford v. Bursey, 429 U.S. 545, 559 , 97 S.Ct. 837, 845-46 , 51 L.Ed.2d 30 (1977); see Goldsmith v. State, 337 Md. 112, 121 , 651 A.2d 866 (1995). The Court of Appeals, however, has mandated certain discovery in criminal cases, in order “to ‘assist the defendant in preparing his defense and to protect him from surprise.’ ” See Hutchins v. State, 339 Md. 466, 473 , 663 A.2d 1281 (1995) (citation omitted). At issue in this appeal is Md. Rule 4-263(b)(l), which requires the State to disclose, upon defense counsel’s request, “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[.]” Exceptions are made for “[t]he identity of a confidential informant, so long as the failure to disclose the informant’s identity does not infringe a constitutional right of the defendant and the State’s Attorney does not intend to call the informant as a witness,” and for “[a]ny other matter if the court finds that its disclosure would entail a substantial risk of harm to any person outweighing the interest in disclosure.” See Md. Rule 4-263(c)(2)-(3).

Thus, “[o]n motion and for good cause shown, the court may order that specified disclosures be restricted.” Md. Rule 4-263G). The Court of Appeals has recognized that the State’s disclosure obligations may be modified in order to protect the prosecution and its witnesses. In the seminal case of Cole ¹⁷ man v. State, 321 Md. 586 , 583 A.2d 1044 (1991), the Court recognized that it may be necessary to balance a defendant’s discovery rights and his Sixth Amendment right to counsel against the State’s interest in safeguarding witnesses and thereby preserving the integrity of the judicial process. The protective order in question prevented defense counsel from disclosing to their co-defendant clients, who were on trial for first degree murder, the identity of two key prosecution witnesses.

As grounds for the order, detectives with substantial experience in homicide and drug investigations testified that the defendants were members of a drug-dealing gang that terrorized the neighborhood through fear and intimidation. According to the prosecution, Holt, a gang leader, ordered Givens, a gang “enforcer,” to shoot the victim for stealing drugs from a gang stash, and Givens did so in broad daylight while the victim sat on the steps of a church. The State requested a protective order that the names of the State’s key witnesses be withheld from the defendants until trial began, then offered detailed evidence in support of such an order. First, the detectives described a community-wide fear of retaliatory violence that thwarts law enforcement efforts: 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....

The picture painted by the two officers was appalling, all the more so because it reflected life on the street.... The residents of those neighborhoods.... 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. Id. at 592-93 , 583 A.2d 1044 .

The Court then reviewed the officers’ testimony regarding the street drug war that precipitated the murder for which Coleman was on trial: ¹⁸ The area around the 800 block of Broadway is “a notorious place where drug deals are made.” ... 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.... distinguished by a pink cap.... 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. [The victim] 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. Id. at 593-94 , 583 A.2d 1044 .

The State also presented evidence of other crimes that Coleman’s organization employed ¹⁹ 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 block from where McNeil was slain.

Givens was charged with the murder of Ireland. Id. at 594-95 , 583 A.2d 1044 . The prosecution witnesses were aware of these reasons to fear testifying against Coleman: 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 ²⁰ one laying out there in this street with nobody coming forward to testify for them. See id. at 595 , 583 A.2d 1044 . Next, the Court of Appeals summarized the evidence of threats specific to that case: The police did ... 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 ... a positive identification of Gregory Givens was made as the shooter of Delroy McNeil.

Also, there was information given relative to a conversation ... between Anthony Coleman and Gregory Givens just prior to the shooting of Delroy McNeil and also there 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 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.

Id. at 595-96 , 583 A.2d 1044 . The Court also considered the potential for retaliation by