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Failure to disclose pretrial ID yields murder conviction reversal

Divided high court broadly reads procedural rule

Maryland prosecutors need not tell defense attorneys when a state’s witness has identified a co-defendant before trial – unless that identification would assuredly incriminate the defendant, a divided Maryland high court has ruled in reversing a first-degree murder conviction.

In its 4-3 decision, the Court of Appeals read broadly a Maryland criminal-procedure rule requiring prosecutors to tell defense counsel during discovery any pretrial identification of the defendant. That rule, though not expressly stated, also requires prosecutors to inform the defense of any pretrial identification of a co-defendant when such an identification would be the functional “equivalent” of identifying the defendant as the person who committed the crime, the high court ruled Friday.

The court, in ordering a new trial, said prosecutors had contended that either Jonathan Copeland or John W. Green III had killed Jeffrey Myers on Oct. 23, 2013, as only the three men were at the scene of the Cecil County shooting. The state’s witness, Doris Carter, clarified the state’s confusion by identifying Copeland as not being the shooter, leaving Green as the one who pulled the trigger.

But the prosecution never told Green’s defense attorney of Carter’s pretrial identification, saying Maryland Rule 4-263 requires prosecutors only disclose identifications of defendants, not co-defendants like Copeland, who had pleaded guilty to the first-degree murder of Myers.

The Cecil County Circuit Court agreed with the state and allowed Carter’s identification at Green’s trial. The Court of Special Appeals affirmed Green’s conviction, prompting him to appeal.

In overturning the conviction, the Court of Appeals said Rule 4-263(d)(7)(B) requires the prosecution to disclose “all relevant material or information regarding … pretrial identification of the defendant by a state’s witness.”

While Green was not the one identified, Carter’s identification of Copeland as the non-shooter was “a prime example of a pretrial identification of a co-defendant being effectively the equivalent of a pretrial identification of the defendant” because the state had narrowed the killer to two people, Judge Shirley M. Watts wrote for the majority.

“Given the state’s theory of the case, Carter’s identification of Copeland as the person who was not responsible for the shooting established that Green was the shooter,” Watts added. “As such, Carter’s pretrial identification of Copeland was relevant information regarding the pretrial identification of Green, and was subject to mandatory disclosure under Maryland Rule 4-263(d)(7)(B).”

The court said its decision “does not require prosecutors to predict the future” regarding the extent to which an identification of a co-defendant will be the functional equivalent of identifying the defendant.

In a statement Monday, the Maryland attorney general’s office expressed concern with the court’s decision.

“We agree with the majority of the Court of Appeals that, ‘the language of Maryland Rule 4-263(d)(7)(B) is unambiguous because it plainly does not require disclosure of the pretrial identification of a co-defendant,” the office stated. “Unfortunately, we are concerned that the remainder of the majority’s opinion – that under certain circumstances disclosure of the pretrial identification of a co-defendant is nonetheless required – sends a mixed message to prosecutors and could lead to confusion regarding the state’s discovery obligations.”

Green’s appellate attorney, Assistant Maryland Public Defender Jeffrey M. Ross, said that “we are very, very pleased with the outcome obviously and we’ll proceed from here.”

Watts was joined by Judges Clayton Greene Jr., Sally D. Adkins and Joseph M. Getty.

Benefit of hindsight

In dissent, Judge Robert N. McDonald stated the rule demands that a pretrial identification of the defendant be disclosed. The rule makes no mention of disclosing the pretrial identification of a co-defendant or “other evidence that might inculpate the defendant but was not itself an identification of the defendant,” McDonald wrote.

He added the majority had the benefit of reviewing the case after trial, which the prosecutors lacked as they decided – based on the procedural rule – that they were not bound to disclose the pretrial identification of a co-defendant.

“What other sort of inculpatory evidence, viewed from that (post-trial) perspective, will be deemed to be ‘effectively the equivalent’ of a pretrial identification of a defendant?” McDonald wrote. “In my view, the majority opinion’s interpretation of the rule undermines the notion, frequently expressed by this court, that the rule is a ‘precise rubric,’ and renders the rule’s application uncertain for those (prosecutors) who must apply it without the benefit of hindsight.”

Chief Judge Mary Ellen Barbera and Michele D. Hotten joined McDonald’s dissent.

The Court of Appeals rendered its decision in John W. Green III v. State of Maryland, No. 4 September Term 2017.

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