Green v. State

. In other

words, the Court concluded that Maryland Rule 4-263(d)(7)(B) is unambiguous, and

applies only to “disclosure of pretrial identifications of ‘the defendant.’”

Id. at 72

149 A.3d at 1170

. The Court observed that, in contrast to Maryland Rule 4-263(d)(7)(B), other

provisions of Maryland Rule 4-263(d) expressly use the term “co-defendant.” See

id. at 72

149 A.3d at 1170

.


                                           - 23 -
       The Court concluded that Green had supplied “no persuasive authority” indicating

that Maryland Rule 4-263(d)(7)(B) applies to a pretrial “identification of someone other

than the defendant” where such a pretrial identification “suggests, in conjunction with other

evidence, that the defendant was involved with the crime.”

Id. at 73

.

The Court reasoned that concluding otherwise would make the State’s discovery

obligations depend on the defendant’s trial strategy, “which often will be unknown prior

to trial.”

Id. at 74

. Applying its holding to the facts of this case, the

Court concluded that the State did not violate Maryland Rule 4-263(d)(7)(B) by not

disclosing during discovery Carter’s pretrial identification of Copeland. See

id. at 74

.

                             Petition for a Writ of Certiorari

       Green petitioned for a writ of certiorari, raising the following two issues:

               1. Does Maryland Rule 4-263(d)(7)(B), which requires the State to
       disclose “[a]ll relevant material or information regarding . . . pretrial
       identification of the defendant by a State’s witness,” require the State to
       disclose all relevant material or information regarding pretrial identification
       of a co-defendant by a State’s witness?

               2. Where [Green] and another individual, [] Copeland, who pled guilty
       to first[-]degree murder and conspiracy to commit first[-]degree murder in
       the shooting death of the victim in [Green]’s case, were both present at the
       scene of the shooting, and the eyewitness identification of Copeland as the
       [person who was not the shooter] implicated [Green] as the person who shot
       and killed the victim, did the Court of Special Appeals err in holding that
       information regarding the identification of Copeland did not fall within the
       scope of “relevant material or information regarding . . . pretrial
       identification of the defendant by a State’s witness,” under [Maryland] Rule
       4-263(d)(7)(B)?

(Ellipses and first alteration in original). This Court granted the petition. See Green v.



                                           - 24 -
State,

452 Md. 4

155 A.3d 891

 (2017).

                                       DISCUSSION

                       I. Pretrial Identification of Co-Defendants

                                 The Parties’ Contentions

       Green contends that, as a general matter, Maryland Rule 4-263(d)(7)(B) requires the

State to disclose a State’s witness’s pretrial identification of a co-defendant. Green argues

that disclosure of a pretrial identification of a co-defendant fulfills the objectives of

Maryland Rule 4-263—namely, assisting the defendant in the preparation of a defense and

protecting the defendant from unfair surprise. Green asserts that the Court of Special

Appeals’s holding resulted in too narrow an interpretation of Maryland Rule 4-

263(d)(7)(B), and that the use of the phrase “all relevant material or information” in the

subsection warrants a broader interpretation, requiring disclosure of a pretrial identification

of a co-defendant.

       Green maintains that Maryland Rule 4-263(d)(7)(B) is analogous to Maryland Rule

4-263(d)(6)(G), which requires the State to disclose a pretrial failure to identify a defendant

or a co-defendant. Green acknowledges that, unlike Maryland Rule 4-263(d)(6)(G),

Maryland Rule 4-263(d)(7)(B) does not explicitly refer to co-defendants. Green contends,

however, that “there is no reasonable explanation as to why the [Standing Committee on

Rules of Practice and Procedure (“the Rules Committee”)] would recommend[—]and this

Court, in its rulemaking capacity, would require[—]disclosure of information regarding

the failure of a witness to identify a co-defendant[,] but not disclosure of information

regarding the witness’s identification of a co-defendant.” According to Green, both of


                                            - 25 -
these pieces of information are important to preparing a defense, and neither is more

burdensome to produce than the other. Green argues that the inclusion of the term “co-

defendant” in Maryland Rule 4-263(d)(6)(G) mandates the inclusion of the term “co-

defendant” in Maryland Rule 4-263(d)(7)(B).

       Green asserts that, even if Maryland Rule 4-263(d)(6)(G)’s use of the word “co-

defendant” does not establish that Maryland Rule 4-263(d)(7)(B) applies to co-defendants,

Maryland Rule 4-263(d)(6)(G)’s use of the word “co-defendant” shows that Maryland Rule

4-263(d)(7)(B) is ambiguous in its applicability to co-defendants. Green maintains that, if

Maryland Rule 4-263(d)(7)(B) is ambiguous, the Rule’s history is vital to resolving any

question as to its construction. Green points out that Maryland Rule 4-263 was amended

in 2008, and contends that the Rules Committee sought to harmonize Maryland Rule 4-263

with the American Bar Association Standards for Criminal Justice: Discovery and Trial by

Jury, 3d Ed. (1996) (“the ABA Standards”) as much as possible, and, as such, intended

Maryland Rule 4-263(d)(7)(B) to “cover identifications of the defendant or co-defendant.”

(Footnote and ellipsis omitted). Green argues that the lack of inclusion of the term “co-

defendant” in Maryland Rule 4-263(d)(7)(B) is not evidence of a deliberate omission.

       The State responds that Maryland Rule 4-263(d)(7)(B)’s plain language limits the

State’s discovery obligations to pretrial identifications of the defendant, not a co-defendant.

The State points out that Maryland Rule 4-263(d)(7)(B) explicitly refers to “the defendant,”

not “a defendant,” meaning that Maryland Rule 4-263(d)(7)(B) may not be construed to

include any defendant—i.e., a co-defendant or a defendant. In other words, the State

contends that the Rules Committee specifically chose language limiting Maryland Rule 4-


                                            - 26 -
263(d)(7)(B) to disclosure of the pretrial identification of the defendant. The State argues

that, because the Rules Committee chose to include the phrase “or a co-defendant” in other

provisions of Maryland Rule 4-263, but deliberately omitted the phrase from Maryland

Rule 4-263(d)(7)(B), it must be presumed that the omission is intentional.

       The State acknowledges that the purposes of Maryland Rule 4-263 include assisting

the defendant in the preparation of a defense and protecting the defendant from unfair

surprise, but the State asserts that not all alleged surprises are covered by Maryland Rule

4-263. The State points out that another purpose of the discovery rules is the provision of

clear notice as to what is required to be disclosed. The State maintains that interpreting

Maryland Rule 4-263(d)(7)(B)—which refers to the disclosure of a pretrial identification

of “the defendant”—to include a requirement to disclose the pretrial identification of a co-

defendant would not provide adequate notice of the State’s disclosure obligations.

       The State contends that Maryland Rule 4-263(d)(7)(B)’s history does not show that

the Rules Committee intended for the phrase “the defendant” to include co-defendants

and/or co-conspirators. The State points out that ABA Standard 11-2.1 requires disclosure

of “[a]ny material, documents, or information relating to lineups, showups, and picture or

voice identifications in relation to the case.”      The State notes that, in proposing

amendments to Maryland Rule 4-263, the Rules Committee considered the ABA

Standards, but failed to include the broad language requiring disclosure of any pretrial

identifications in relation to the case. The State argues that, instead, the Rules Committee

decided to narrow the State’s disclosure requirement to “[a]ll relevant material or

information regarding . . . pretrial identification of the defendant by a State’s witness[.]”


                                           - 27 -
The State asserts that the Rules Committee was free to require the disclosure of a pretrial

failure to identify a co-defendant in Maryland Rule 4-263(d)(6)(G) and not require the

disclosure of a pretrial identification of a co-defendant in Maryland Rule 4-263(d)(7)(B).

       The State contends that Maryland case law does not support the position that the

pretrial identification of a co-defendant is required to be disclosed under Maryland Rule 4-

263(d)(7)(B). The State points out that the cases relied on by Green involve pretrial

identifications and non-identifications of “the defendant,” not a co-defendant. The State

asserts that, even if Maryland Rule 4-263(d)(7)(B) can be construed to apply to a co-

defendant, it is unclear in this case that Copeland was a co-defendant because he and Green

were not charged in the same charging document, did not appear at the same hearings, and

were not tried together.

                                   Standard of Review

       Where, as here, a trial court does not expressly determine that a discovery violation

occurred, an appellate court reviews the issue without deference. See Williams,

364 Md. at 169

771 A.2d at 1087

 (“Where the trial [court] made no specific finding as a matter of

law that the State violated the discovery rule, we exercise independent de novo review to

determine whether a discovery violation occurred.” (Citations omitted)).

       In Fuster v. State,

437 Md. 653, 664-65

89 A.3d 1114, 1120

 (2014), this Court

discussed the standard for interpreting a Maryland Rule:

              A court interprets a Maryland Rule by using the same canons of
       construction that the court uses to interpret a statute. First, the court
       considers the Rule’s plain language in light of: (1) the scheme to which the
       Rule belongs; (2) the purpose, aim, or policy of this Court in adopting the
       Rule; and (3) the presumption that this Court intends the Rules and this


                                           - 28 -
       Court’s precedent to operate together as a consistent and harmonious body
       of law. If the Rule’s plain language is unambiguous and clearly consistent
       with the Rule’s apparent purpose, the court applies the Rule’s plain language.
       Generally, if the Rule’s plain language is ambiguous or not clearly consistent
       with the Rule’s apparent purpose, the court searches for rulemaking intent in
       other indicia, including the history of the Rule or other relevant sources
       intrinsic and extrinsic to the rulemaking process, in light of: (1) the structure
       of the Rule; (2) how the Rule relates to other laws; (3) the Rule’s general
       purpose; and (4) the relative rationality and legal effect of various competing
       constructions.

(Brackets, citations, and internal quotation marks omitted).

       Where a Rule’s language is clear, a court “neither add[s] nor delete[s] language so

as to reflect an intent not evidenced in the plain and unambiguous language of the Rule.”

Williams v. State,

435 Md. 474, 490

79 A.3d 931, 940

 (2013) (brackets, citation, and

internal quotation marks omitted). “Unambiguous language will be given its usual,

ordinary meaning unless doing so creates an absurd result.” Hurst v. State,

400 Md. 397, 417

929 A.2d 157, 168

 (2007) (citation omitted).

                                   Maryland Rule 4-263

       Maryland Rule 4-263 states in relevant part:

       (a) Applicability. This Rule governs discovery and inspection in a circuit
       court.

       Committee note. — This Rule also governs discovery in actions transferred
       from District Court to circuit court upon a jury trial demand made in
       accordance with Rule 4-301(b)(1)(A). See Rule 4-301(c).

       (b) Definitions. In this Rule, the following definitions apply:

             (1) Defense. “Defense” means an attorney for the defendant or a
       defendant who is acting without an attorney.

             (2) Defense Witness. “Defense witness” means a witness whom the
       defense intends to call at a hearing or at trial.


                                            - 29 -
       (3) Oral Statement. “Oral statement” of a person means the substance
of a statement of any kind by that person, whether or not reflected in an
existing writing or recording.

       (4) Provide. Unless otherwise agreed by the parties or required by
Rule or order of court, “provide” information or material means (A) to send
or deliver it by mail, e-mail, facsimile transmission, or hand-delivery, or (B)
to make the information or material available at a specified location for
purposes of inspection if sending or delivering it would be impracticable
because of the nature of the information or material.

       (5) State’s Witness. “State’s witness” means a witness whom the
State’s Attorney intends to call at a hearing or at trial.

Cross references. — For the definition of “State’s Attorney,” see Rule 4-
102(l).

       (6) Written Statement. “Written statement” of a person:

             (A) includes a statement in writing that is made, signed, or
       adopted by that person;

              (B) includes the substance of a statement of any kind made by
       that person that is embodied or summarized in a writing or recording,
       whether or not signed or adopted by the person;

              (C) includes a statement contained in a police or investigative
       report; but

              (D) does not include attorney work product.

(c) Obligations of the Parties. (1) Due Diligence. The State’s Attorney and
defense shall exercise due diligence to identify all of the material and
information that must be disclosed under this Rule.

        (2) Scope of Obligations. The obligations of the State’s Attorney and
the defense extend to material and information that must be disclosed under
this Rule and that are in the possession or control of the attorney, members
of the attorney’s staff, or any other person who either reports regularly to the
attorney’s office or has reported to the attorney’s office in regard to the
particular case.



                                     - 30 -
Cross references. — For the obligations of the State’s Attorney, see State v.
Williams,

392 Md. 194

 (2006).

(d) Disclosure by the State’s Attorney. Without the necessity of a
request, the State’s Attorney shall provide to the defense:

       (1) Statements. All written and all oral statements of the defendant
and of any co-defendant that relate to the offense charged and all material
and information, including documents and recordings, that relate to the
acquisition of such statements;

      (2) Criminal Record. Prior criminal convictions, pending charges,
and probationary status of the defendant and of any co-defendant;

       (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;

       (4) Prior Conduct. All evidence of other crimes, wrongs, or acts
committed by the defendant that the State’s Attorney intends to offer at a
hearing or at trial pursuant to Rule 5-404(b);

       (5) Exculpatory Information. All material or information in any form,
whether or not admissible, that tends to exculpate the defendant or negate or
mitigate the defendant’s guilt or punishment as 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:

             (A) evidence of prior conduct to show the character of the
       witness for untruthfulness pursuant to Rule 5-608(b);

               (B) a relationship between the State’s Attorney and the
       witness, including the nature and circumstances of any agreement,
       understanding, or representation that may constitute an inducement
       for the cooperation or testimony of the witness;

              (C) prior criminal convictions, pending charges, or
       probationary status that may be used to impeach the witness, but the


                                    - 31 -
      State’s Attorney is not required to investigate the criminal record of
      the witness unless the State’s Attorney knows or has reason to believe
      that the witness has a criminal record;

            (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;

              (E) a medical or psychiatric condition or addiction of the
      witness that may impair the witness’s ability to testify truthfully or
      accurately, but the State’s Attorney is not required to inquire into a
      witness’s medical, psychiatric, or addiction history or status unless the
      State’s Attorney has information that reasonably would lead to a
      belief that an inquiry would result in discovering a condition that may
      impair the witness’s ability to testify truthfully or accurately;

            (F) the fact that the witness has taken but did not pass a
      polygraph examination; and

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

Cross references. — See Brady v. Maryland,

373 U.S. 83

 (1963); Kyles v.
Whitley,

514 U.S. 419

 (1995); Giglio v. U.S.,

405 U.S. 150

 (1972); U.S. v.
Agurs,

427 U.S. 97

 (1976); Thomas v. State,

372 Md. 342

 (2002); Goldsmith
v. State,

337 Md. 112

 (1995); and Lyba v. State,

321 Md. 564

 (1991).

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

             (A) specific searches and seizures, eavesdropping, and
      electronic surveillance including wiretaps; and

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

       (8) Reports or Statements of Experts. As to each expert consulted by
the State’s Attorney in connection with the action:

             (A) the expert’s name and address, the subject matter of the
      consultation, the substance of the expert’s findings and opinions, and
      a summary of the grounds for each opinion;



                                   - 32 -
              (B) the opportunity to inspect and copy all written reports or
       statements made in connection with the action by the expert, including
       the results of any physical or mental examination, scientific test,
       experiment, or comparison; and

              (C) the substance of any oral report and conclusion by the
       expert;

      (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; and

        (10) Property of the Defendant. The opportunity to inspect, copy, and
photograph all items obtained from or belonging to the defendant, whether
or not the State’s Attorney intends to use the item at a hearing or at trial.

...

(g) Matters Not Discoverable. (1) By Any Party. Notwithstanding any
other provision of this Rule, neither the State’s Attorney nor the defense is
required to disclose (A) the mental impressions, trial strategy, personal
beliefs, or other privileged attorney work product or (B) any other material
or information if the court finds that its disclosure is not constitutionally
required and would entail a substantial risk of harm to any person that
outweighs the interest in disclosure.

       (2) By the Defense. The State’s Attorney is not required to disclose
the identity of a confidential informant unless the State’s Attorney intends to
call the informant as a State’s witness or unless the failure to disclose the
informant’s identity would infringe a constitutional right of the defendant.

...

(j) Continuing Duty to Disclose. Each party is under a continuing obligation
to produce discoverable material and information to the other side. A party
who has responded to a request or order for discovery and who obtains
further material information shall supplement the response promptly.

...

(n) Sanctions. If at any time during the proceedings the court finds that a
party has failed to comply with this Rule or an order issued pursuant to this


                                    - 33 -
       Rule, the court may order that party to permit the discovery of the matters
       not previously disclosed, strike the testimony to which the undisclosed matter
       relates, grant a reasonable continuance, prohibit the party from introducing
       in evidence the matter not disclosed, grant a mistrial, or enter any other order
       appropriate under the circumstances. The failure of a party to comply with
       a discovery obligation in this Rule does not automatically disqualify a
       witness from testifying. If a motion is filed to disqualify the witness’s
       testimony, disqualification is within the discretion of the court.

(Emphasis added).

                                       Collins v. State

       In Collins v. State,

373 Md. 130, 146, 133-34

816 A.2d 919, 928, 921

 (2003), this

Court held that the State violated what is now Maryland Rule 4-263(d)(7)(B)4 by failing to

disclose during discovery that a State’s witness had failed to identify the defendant pretrial.

When this Court decided Collins, Maryland Rule 4-263(d)(6)(G) had not yet been adopted,

and no provision of Maryland Rule 4-263 expressly required disclosure of a pretrial failure

to identify a defendant or a co-defendant.

       In Collins,

373 Md. at 132

816 A.2d at 920

, the defendant was convicted of first-

degree murder and related handgun offenses. On the night of the shooting, a witness told

a Baltimore City detective that he had not seen anything because he had been too far away.

See

id. at 133

. The detective included this information in a report. See

id. at 133

. Subsequently, however, before trial, the witness identified the



       4
        When this Court decided Collins in 2003, the provision that is now Maryland Rule
4-263(d)(7)(B) was Maryland Rule 4-263(a)(2)(C). For clarity, we refer to the provision’s
current version when we discuss Collins and other cases that were decided before the
amendment occurred in 2008. See Court of Appeals of Maryland, Rules Order at 17 (Apr.
8, 2008), available at http://www.mdcourts.gov/rules/rodocs/ro158supp.pdf [https://perma.
cc/WU4N-N6NG].

                                             - 34 -
defendant as the shooter in a photographic array and gave a contemporaneous audiotaped

statement. See

id. at 133-34

. Initially, during discovery, the State

disclosed the witness’s pretrial photographic array identification of the defendant, but did

not disclose the pretrial failure to identify the defendant the night of the shooting, or the

audiotaped statement identifying the defendant. See

id. at 134

. Later, the

State provided to the defense the audiotaped statement, but still did not disclose the pretrial

failure to identify the defendant. See

id. at 134

.

       At trial, the State initially encountered difficulties in securing the witness’s

appearance. See

id. at 134

. By the time that law enforcement officers

located the witness, the trial’s evidentiary phase had concluded. See

id. at 134-35

. The State moved to reopen its case so that the witness could testify. See

id. at 135

. The defendant’s counsel opposed the motion to reopen on the

ground that there was no necessity for reopening, as the State had simply failed to summons

the witness before trial. See

id. at 135

816 A.2d at 921-22

. The defendant’s counsel also

advised that he had just learned about the witness’s pretrial failure to identify the defendant.

See

id. at 135

816 A.2d at 922

. The prosecutor responded that the omission of the

witness’s pretrial failure to identify the defendant was inadvertent. See

id. at 135

816 A.2d at 922

. The trial court granted the motion to reopen. See

id. at 135

816 A.2d at 922

.

       The defendant’s counsel moved for a continuance over the weekend to prepare for

the witness’s testimony, and the trial court denied the motion to continue. See

id. at 143

816 A.2d at 926-27

. While testifying, the witness identified the defendant as the shooter.

See

id. at 139

816 A.2d at 924

. The defendant was convicted. See

id. at 132

, 816 A.2d at


                                             - 35 -
920. The Court of Special Appeals affirmed, and this Court reversed and remanded for a

new trial. See

id. at 132, 149

816 A.2d at 920, 930

.

       In discussing the underlying policies of Maryland Rule 4-263, this Court stated:

       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 [Maryland] Rule 4-
       263([d]), 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 [Maryland] Rule [4-263] with proper deference to these
       policies.

Id. at 146-47

 (quoting Williams,

364 Md. at 172

).

       This Court concluded that the State violated Maryland Rule 4-263(d)(7)(B) “[i]n

light of the plain meaning and policies of the Rule[.]” Collins,

373 Md. at 147

. More specifically, this Court held that the witness’s pretrial failure to identify the

defendant fell “within the scope of ‘relevant material or information regarding pretrial

identification of the defendant by a witness for the State.’” See

id. at 146


(quoting Md. R. 4-263(d)(7)(B)) (emphasis in original) (footnote omitted). This Court

concluded that the witness’s pretrial photographic array identification of the defendant

made “the initial statement given on the night of the crime relevant to the veracity of the

subsequent identification[,]” and that “the prior statement, [then] a prior inconsistent

statement, became subject to the requirements of” Maryland Rule 4-263(d)(7)(B).

Id.

 at

146 n.9,

 n.9.

       This Court held that the State’s violation of Maryland Rule 4-263(d)(7)(B) was



                                            - 36 -
prejudicial, and thus was not harmless beyond a reasonable doubt. See

id. at 148

. This Court observed that a witness’s ability to identify a defendant “at the scene of

the crime is often the cardinal facet of a determination of guilt.”

Id. at 148

 (citation omitted). This Court explained: “It is not for us to determine what, if any,

response the defense could have prepared had it known of the prior inconsistent statement.

It is enough to find that the defense was denied an adequate opportunity to do so, to its

prejudice.”

Id. at 148

.

       This Court determined that the trial court abused its discretion in denying the

defendant’s motion for a continuance, which would have given the defendant’s counsel “an

opportunity to review the circumstances surrounding the undisclosed prior inconsistent

statement[.]”

Id. at 149

816 A.2d at 930

. In other words, a continuance “would have been

appropriate to allow defense counsel adequate time to ‘regroup,’ investigate, and prepare

as full a defense as possible.”

Id. at 143

816 A.2d at 927

.

                                           Analysis

       Here, we conclude that, as a general matter, Maryland Rule 4-263(d)(7)(B) does

not, by its plain language and history, require the State to disclose during discovery a

State’s witness’s pretrial identification of a co-defendant.

       As an initial matter, we address the State’s contention that, even if Maryland Rule

4-263(d)(7)(B) can be construed to apply to co-defendants, Maryland Rule 4-263(d)(7)(B)

does not apply in this case because it is not clear that Copeland and Green were co-

defendants. Despite the State’s contention in its brief, the record is replete with references

by the prosecutor identifying Copeland as a co-defendant in the circuit court. At a bench


                                            - 37 -
conference, the prosecutor stated: “[T]he [S]tate intends to produce the body of [] Copeland

to at least one witness[.] . . . [I]dentification of a co-defendant[,] when charged as co[-

]conspirators[,] is almost as important as identification of the defendant[.]” Later at the

bench conference, the prosecutor stated: “[T]his is [a] co-defendant, not the defendant

himself.” Still later at the bench conference, the prosecutor stated: “The co-defendant, []

Copeland, was interviewed by other people.” Shortly afterward, the prosecutor stated that

Green and his counsel “knew that . . . the co-defendant existed.” Later, the prosecutor

stated: “[W]e had a collateral thought about the co-defendant being brought in, as you said,

in prison garb[.]” Shortly before Copeland was brought into the courtroom, the prosecutor

stated: “We’re going to ask [Carter] another question before we bring in the body of the

co-defendant[.]” And, during the State’s closing argument, the prosecutor stated:

       To call each other, [] Green and [] Copeland had to use outside sources to
       connect them together. You heard testimony about the system at the
       detention center. They are on separate tiers. Co-defendants, people who are
       charged as co-defendants in a crime, are put in separate places, and one of
       the reasons is so that they can’t talk, can’t contrive, can’t discuss the cases.

The record demonstrates that, in the circuit court, the State took a different position with

respect to Copeland’s status as a co-defendant.

       No Maryland Rule or statute defines the term “co-defendant.” Black’s Law

Dictionary provides the following definition of the term “co-defendant”: “One of two or

more defendants sued in the same litigation or charged with the same crime.” Codefendant,

Black’s Law Dictionary (10th ed. 2014).

       Neither this Court nor the Court of Special Appeals has had the occasion to

expressly define the term “co-defendant.” Both this Court and the Court of Special


                                            - 38 -
Appeals, however, have treated the term “co-defendant” in a manner that indicates that

Black’s Law Dictionary’s definition of the term “co-defendant” is accurate—i.e., that a co-

defendant is an individual who is charged with the same crime as the defendant. In Veney

v. State,

251 Md. 159, 164

246 A.2d 608, 612

 (1968), this Court stated: “The motion for

discovery and inspection filed by the appellant asked for copies of all written statements of

three co-defendants who were charged with the same crimes with which appellant was

charged.” (Emphasis added). In Boone v. State,

3 Md. App. 11, 31

237 A.2d 787, 800

,

cert. denied,

393 U.S. 872

 (1968), the Court of Special Appeals stated: “The fact of the

conviction or acquittal of one person charged with a crime is neither relevant nor material

to the issue of the guilt or innocence of another person charged with the same crime as a

co-perpetrator. Contrary to the position taken by the appellant, we feel that the admission

of evidence of the conviction of a co-defendant at a prior trial would be prejudicial

error.” (Emphasis added).5 And, in Boyd v. State,

321 Md. 69, 72

581 A.2d 1, 2

 (1990),

this Court repeatedly referred to defendants who were charged with the same crime as co-

defendants, even though they were charged separately and tried separately. Similarly, in

Hickman v. State,

242 Md. 91, 91

218 A.2d 21, 22

 (1966), this Court stated that the

defendant “was tried . . . with two separately indicted co-defendants[.]” And, in State v.

Johnson,

367 Md. 418

, 421 & n.2,

788 A.2d 628

, 630 & n.2 (2002), without expressly

referring to co-defendants, this Court stated that four co-conspirators were tried jointly,


       5
         To be sure, in Boone,

3 Md. App. at 13

237 A.2d at 790

, the Court of Special
Appeals stated that the appellant and three others “were jointly indicted for [] murder and
robbery with a deadly weapon[.]” The Court of Special Appeals did not expressly indicate
that the appellant and three other individuals were charged in the same document.

                                           - 39 -
even though one of them “was indicted separately.”

       This Court has never determined, or, indeed, even indicated, that a co-defendant

must be charged in the same charging document as the defendant. To the contrary,

Maryland Rule 4-253(a) expressly permits two defendants who have been charged

separately to be tried together. See Md. R. 4-253(a) (“On motion of a party, the court may

order a joint trial for two or more defendants charged in separate charging documents if

they are alleged to have participated in the same act or transaction or in the same series of

acts or transactions constituting an offense or offenses.”). In other words, Maryland Rule

4-253(a) explicitly allows two separately-charged individuals to be tried together as co-

defendants.

       The State mistakenly relies on State v. Stojetz,

705 N.E.2d 329, 338

 (Ohio 1999)

for the proposition that, to be a co-defendant, an individual must have been charged in the

same charging document as the defendant. In Stojetz,

id.,

 the Supreme Court of Ohio

reasoned that co-conspirators were not co-defendants because the defendant “was the only

person charged in the indictment[.]” In Stojetz,

id.,

 the Court quoted State v. Wickline,

552 N.E.2d 913, 918

(Ohio 1990), in which, in turn, the Court quoted the following

definition of “co-defendant” in Black’s Law Dictionary (5th ed. 1979): “More than one

defendant being sued in the same litigation; or, more than one person charged in same

complaint or indictment with same crime.” (Emphasis added).

This definition of the term “co-defendant” in the Fifth Edition of Black’s Law

Dictionary from 1979 is now approximately thirty-eight years old. In the meantime, there

have been five newer editions of Black’s Law Dictionary. The most recent edition—

- 40 -
namely, the Tenth Edition, published in 2014—has a different definition of the term “co-

defendant” than the one that the Supreme Court of Ohio employed in Wickline and

Stojetz. In contrast to the Fifth Edition, the Tenth Edition does not include in its definition

of the term “co-defendant” the requirement that the individual was charged “in the same

complaint or indictment.” Instead, the Tenth Edition simply defines the term “co-

defendant” as “[o]ne of two or more defendants . . . charged with the same

crime.” Codefendant, Black’s Law Dictionary (10th ed. 2014).

The Tenth Edition’s definition of the term “co-defendant” is consistent with

Maryland case law, which indicates that a co-defendant is an individual who is charged

with the same crime as the defendant. To the extent that an older edition of Black’s Law

Dictionary, or Ohio case law, endorses a definition of the term “co-defendant” that requires

the co-defendant to be charged in the same charging document as the defendant, such a

definition is inconsistent with the way in which this Court and the Court of Special Appeals

have employed the term “co-defendant.” In this case, it is undisputed that Copeland pled

guilty to first-degree murder of Myers and conspiracy to commit first-degree murder of

Myers—i.e., that he was charged with, and convicted of, the same crimes with which Green

was charged. We have no difficulty in concluding that Green and Copeland were co-

defendants.

As to the plain language of Maryland Rule 4-263(d)(7)(B) and whether, as a general

matter, it requires disclosure of the pretrial identification of a co-defendant, Maryland Rule

4-263(d)(7)(B) provides: “Without the necessity of a request, the State’s Attorney shall

provide to the defense . . . [a]ll relevant material or information regarding . . . pretrial

- 41 -
identification of the defendant by a State’s witness[.]” The word “co-defendant” is

conspicuously absent from Maryland Rule 4-263(d)(7)(B).

One of the cardinal tenets of rule interpretation is that, where the language of the

Rule is plain, we “neither add nor delete language” to reach a result not set forth in the

clear language of the Rule. Williams,

435 Md. at 490

79 A.3d at 940

 (citation and internal

quotation marks omitted). The language of Maryland Rule 4-263(d)(7)(B) is plain and

unambiguous—Maryland Rule 4-263(d)(7)(B) applies only to pretrial identifications of

“the defendant,” and not to pretrial identifications of a co-defendant. Significantly, where

Maryland Rule 4-263(d) applies to co-defendants, the language of the Rule says as much;

the word “co-defendant” is found in three of Maryland Rule 4-263(d)’s other provisions.

First, Maryland Rule 4-263(d)(1) requires the State to disclose “[a]ll written and all oral

statements of the defendant and of any co-defendant that relate to the offense charged and

all material and information . . . that relate to the acquisition of such statements[.]” Second,

Maryland Rule 4-263(d)(2) requires the State to disclose “[p]rior criminal convictions,

pending charges, and probationary status of the defendant and of any co-defendant[.]” And

third, Maryland Rule 4-263(d)(6)(G) requires the State to disclose “[a]ll material or

information in any form, whether or not admissible, that tends to impeach a State’s witness,

including . . . the failure of the witness to identify the defendant or a co-defendant[.]”

       Each party contends that Maryland Rule 4-263(d)(6)(G) supports its position.

Green asserts that, by requiring the State to disclose a pretrial failure to identify a co-

defendant, Maryland Rule 4-263(d)(6)(G) implies that the State must also routinely

disclose a pretrial identification of a co-defendant. By contrast, the State argues that, by


                                             - 42 -
referring to co-defendants, Maryland Rule 4-263(d)(6)(G)—as well as Maryland Rule 4-

263(d)(1) and (d)(2)—establish that the lack of a reference to co-defendants in Maryland

Rule 4-263(d)(7)(B) was intentional. In our view, the State has the better part of the

argument. Maryland Rule 4-263(d)(6)(G), (d)(1), and (d)(2) demonstrate that, where a

provision of Maryland Rule 4-263 applies to co-defendants, the provision explicitly states

that it applies to co-defendants. The plain language of Maryland Rule 4-263(d)(7)(B)

supports the conclusion that Maryland Rule 4-263(d)(7)(B) applies only to the defendant,

and not to co-defendants.6

       Our interpretation of Maryland Rule 4-263(d)(7)(B) is also supported by the

circumstance that Maryland Rule 4-263(d)(7)(B) is not the only provision of Maryland

Rule 4-263(d) that expressly refers to the defendant, but does not apply to a co-defendant.


       6
         Contrary to Green’s position, there is a reasonable explanation as to why Maryland
Rule 4-263(d)(6)(G) requires disclosure of a pretrial failure to identify a co-defendant,
whereas Maryland Rule 4-263(d)(7)(B) does not require disclosure of a pretrial
identification of a co-defendant. Specifically, Maryland Rule 4-263(d)(7)(B) does not
share Maryland Rule 4-263(d)(6)(G)’s purpose of disclosing impeachment material to the
defense. Maryland Rule 4-263(d)(6) requires the State to disclose “[a]ll material or
information in any form, whether or not admissible, that tends to impeach a State’s
witness[.]” A failure to identify a co-defendant pretrial clearly falls under this category, as
it would cast doubt on any subsequent identification of the defendant by the witness. If a
witness fails to identify a co-defendant, but identifies the defendant, this circumstance
would call into question the witness’s credibility, the witness’s ability to observe, and the
witness’s ability to recall.
        However, where, as here, a witness identifies a co-defendant before trial, this
circumstance does not provide any grounds for impeachment under Maryland Rule 4-
263(d)(6), as the witness’s pretrial identification of the co-defendant would not constitute
impeachment material. In short, a failure to identify a co-defendant pretrial is impeachable;
a pretrial identification of a co-defendant is not. The rationale underlying the requirement
of Maryland Rule 4-263(d)(6)(G) to disclose the failure to identify a co-defendant pretrial
does not extend to the requirement of Maryland Rule 4-263(d)(7)(B) to disclose pretrial
identifications of the defendant.

                                            - 43 -
This leads to the conclusion that Maryland Rule 4-263(d) expressly delineates when

provisions apply to the defendant, but not a co-defendant. In addition to Maryland Rule 4-

263(d)(7)(B), three other provisions of Maryland Rule 4-263(d) apply only to the

defendant. Maryland Rule 4-263(d)(4) requires the State to disclose “[a]ll evidence of

other crimes, wrongs, or acts committed by the defendant that the State’s Attorney intends

to offer at a hearing or at trial pursuant to Rule 5-404(b)[.]” (Emphasis added). Maryland

Rule 4-263(d)(10) requires the State to provide “[t]he opportunity to inspect, copy, and

photograph all items obtained from or belonging to the defendant, whether or not the

State’s Attorney intends to use the item at a hearing or at trial.” (Emphasis added). And,

Maryland Rule 4-263(d)(5) requires the State to disclose “[a]ll material or information in

any form, whether or not admissible, that tends to exculpate the defendant or negate or

mitigate the defendant’s guilt or punishment as to the offense charged[.]” (Emphasis

added). Like Maryland Rule 4-263(d)(7)(B), Maryland Rule 4-263(d)(4), (d)(10), and

(d)(5) are provisions that, by their plain language, extend the State’s discovery obligations

to matters involving only the defendant, not a co-defendant. As such, Maryland Rule 4-

263(d)(7)(B) is not an anomaly. Just as we would not read into Maryland Rule 4-263(d)(4),

(d)(10), or (d)(5) a requirement that the State’s discovery obligations include a co-

defendant as well as the defendant, we would not alter the plain language of Maryland Rule

4-263(d)(7)(B). In short, certain provisions of Maryland Rule 4-263(d) do not require the

State to disclose information that relates to a co-defendant. To accept Green’s position

that, as a general matter, Maryland Rule 4-263(d)(7)(B) applies to pretrial identifications

of both the defendant and a co-defendant would read into the Rule language that is not


                                           - 44 -
there, potentially affecting interpretation of other provisions of the Rule, which also only

apply to the defendant.

       We acknowledge that there may be cases, such as this one, where a defendant alleges

that a pretrial identification of a co-defendant is relevant and, thus, should be disclosed

under Maryland Rule 4-263(d)(7)(B). In such instances, however, the correct resolution is

not to read into Maryland Rule 4-263(d)(7)(B) the requirement that the State disclose

pretrial identifications of a co-defendant. Instead, the proper inquiry is whether the pretrial

identification of the co-defendant constitutes “relevant material or information regarding .

. . pretrial identification of the defendant” under Maryland Rule 4-263(d)(7)(B). Stated

otherwise, a defendant’s allegation of prejudice based on the nondisclosure of a pretrial

identification of a co-defendant does not require departing from the plain meaning of

Maryland Rule 4-263(d)(7)(B)’s language.

       We conclude 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.

Maryland Rule 4-263(d)(7)(B) does not become ambiguous when considered together with

Maryland Rule 4-263(d)(6)(G), which requires the disclosure of the failure to identify a

co-defendant pretrial. These are separate provisions of Maryland Rule 4-263(d), and, like

other provisions, reflect instances in which the Rule applies to the defendant, or to the

defendant and a co-defendant. Our holding in this case fully comports with Maryland Rule

4-263(d)’s purposes of preventing unfair surprise and assisting in the preparation of a

defense. Because Maryland Rule 4-263(d)(7)(B) is unambiguous, we decline to add the

phrase “or a co-defendant” “so as to reflect an intent not evidenced in the plain and


                                             - 45 -
unambiguous language of the Rule.” Williams,

435 Md. at 490

79 A.3d at 940

 (brackets,

citation, and internal quotation marks omitted).

       Given that Maryland Rule 4-263(d)(7)(B) is unambiguous, we are not required to

examine its history, but we elect to do so “as a confirmatory process.” State v. Rice,

447 Md. 594, 623

136 A.3d 720, 737

 (2016) (citation and internal quotation marks omitted).

In 1977, this Court adopted a predecessor of Maryland Rule 4-263, former Maryland Rule

741. Former Maryland Rule 741(a) was entitled “Disclosure Without Request,” and stated:

       Without the necessity of a request by the defendant, the State’s Attorney shall
       furnish to the defendant:

              1. Any material or information within his possession or control which
       tends to negate the guilt of the defendant as to the offense charged or would
       tend to reduce his punishment therefor; [and]

              2. Any relevant material or information regarding: (a) specific
       searches and seizures, wire taps and eavesdropping, (b) the acquisition of
       statements made by the defendant, and (c) pretrial identification of the
       defendant by a witness for the State.

(Emphasis added). Thus, like current Maryland Rule 4-263(d)(7)(B), former Maryland

Rule 741(a)(2)(c) applied only to disclosure of pretrial identifications of the defendant, not

a co-defendant.

       In 1984, without substantive amendment, former Maryland Rule 741(a)(2)(c) was

replaced by Maryland Rule 4-263(a)(2)(C). In 2007, Maryland Rule 4-263(a)(2)(C)

remained identical to former Maryland Rule 741(a)(2)(c), except that the words “by the

defendant” had been deleted from the phrase “[w]ithout the necessity of a request by the

defendant,” so that the Rule read, in pertinent part, “[w]ithout the necessity of a request,

the State’s Attorney shall furnish to the defendant: . . . [] Any relevant material or


                                            - 46 -
information regarding: . . . pretrial identification of the defendant by a witness for the

State.”

          On September 26, 2007, the Rules Committee submitted its One Hundred Fifty-

Eighth Report to this Court. Rules Committee, One Hundred Fifty-Eighth Report at 3

(Sept. 26, 2007), available at http://www.mdcourts.gov/rules/reports/158thReport.pdf

[https://perma.cc/7U62-CPYN].         The Rules Committee proposed making several

amendments to Maryland Rule 4-263, including adding in Maryland Rule 4-263(b)(3) a

requirement that the State provide “[a]ny material or information in any form, whether or

not admissible, in the possession or control of the State, . . . that tends to impeach a

witness[.]” Id. at 109-10. The Rules Committee proposed replacing Maryland Rule 4-

263(a)(2)(C)—which required the State to disclose a pretrial identification of the

defendant—with Maryland Rule 4-263(b)(4)(C) without substantive amendment. See id.

at 110. In proposed Maryland Rule 4-263(b)(4)(C), the Rules Committee recommended

replacing the word “furnish” with the word “provide,” and recommended adding the phrase

“Except for the privileged work product of the State’s Attorney as defined in subsection

(d)(1) of this Rule” to the beginning of the sentence. Id. at 109. The Rules Committee did

not propose any changes to the phrase “pretrial identification of the defendant by a witness

for the State.” Id. at 110. In other words, the Rules Committee did not propose adding a

requirement that the State disclose a pretrial identification of a co-defendant. See id.

          The Rules Committee proposed a Committee Note stating in pertinent part:

“Examples of material and information that must be disclosed pursuant to subsections

(b)(2) and (3) of this Rule if within the possession or control of the State . . . include: . . .


                                             - 47 -
the [pretrial] failure of a witness to make an identification[.]” Id. The Rules Committee,

however, did not include in the text of proposed Maryland Rule 4-263 a requirement to

disclose a pretrial failure to make an identification.

        In a Rules Order dated December 4, 2007, this Court deferred consideration of the

proposed amendments to Maryland Rule 4-263 “pending further study by this Court[.]”

Court of Appeals of Maryland, Rules Order at 3 (Dec. 4, 2007), available at http://www.

mdcourts.gov/rules/rodocs/ro158.pdf [https://perma.cc/2CRL-8QLL].

        On March 25, 2008, the Rules Committee submitted a Supplement to the One

Hundred Fifty-Eighth Report. Rules Committee, Supplement to One Hundred Fifty-Eighth

Report at 1 (March 25, 2008), available at http://www.mdcourts.gov/rules/reports/

158supplementappx.pdf [https://perma.cc/SM3F-A7QZ]. In the Supplement, the Rules

Committee explained why this Court had deferred consideration of the proposed

amendments to Maryland Rule 4-263:

               At the hearing held on [the One Hundred Fifty-Eighth] Report[] on
        December 3, 2007, concerns were expressed by a number of prosecutors and
        others with respect to certain aspects of the recommended changes to
        [Maryland] Rules 4-262 and 4-263, principally the latter. Members of the
        Court inquired whether, in formulating its recommendations, the Rules
        Committee had considered the [ABA Standards], and the answer was that
        those Standards had not been considered. In light of the controversy with
        respect to some of the [Rules] Committee’s proposals, the Court deferred
        action on them.

Id.   The Rules Committee stated: “Although the Rules Committee has now given

consideration to the ABA Standards and has crafted [Maryland] Rule[] 4-263 in closer

harmony to them, its recommendations continue to depart from them in some respects.”

Id. at 3.


                                            - 48 -
       With regard to pretrial identifications, the Rules Committee proposed adding

Maryland Rule 4-263(d)(6)(G), which would require the State to disclose a witness’s

failure “to identify the defendant or a co-defendant” pretrial. Id. at 84. Significantly,

however, the Rules Committee did not propose adding a reference to co-defendants to the

provision that required disclosure of a pretrial identification of the defendant. See id. In

other words, the Rules Committee proposed changing Maryland Rule 4-263(a)(2)(C) to

Maryland Rule 4-263(d)(7)(B) without substantive amendment. See id. Specifically,

proposed Maryland Rule 4-263(d)(7)(B) stated: “Without the necessity of a request, the

State’s Attorney shall provide to the defense . . . [a]ll relevant material or information

regarding . . . pretrial identification of the defendant by a State’s witness[.]” Id. at 82, 84.

This language is identical to that of current Maryland Rule 4-263(d)(7)(B).7

       Proposed Maryland Rule 4-263(d)(7)(B) was not as broad as its counterpart, ABA

Standard 11-2.1(a)(vii), which states:

       The prosecution should, within a specified and reasonable time prior to trial,
       disclose to the defense the following information and material and permit
       inspection, copying, testing, and photographing of disclosed documents or
       tangible objects . . . [a]ny material, documents, or information relating to
       lineups, showups, and picture or voice [pretrial] identifications in
       relation to the case.

ABA Standards, available at https://www.americanbar.org/publications/criminal_justice_


       7
        In a Rules Order dated April 8, 2008, this Court rescinded the existing Maryland
Rule 4-263 and added a new Maryland Rule 4-263. See Court of Appeals of Maryland,
Rules Order at 2 (Apr. 8, 2008), available at http://www.mdcourts.gov/rules/rodocs/
ro158supp.pdf [https://perma.cc/WU4N-N6NG]. Since then, this Court has amended other
provisions of Maryland Rule 4-263 multiple times, but this Court has never amended
Maryland Rule 4-263(d)(7)(B).


                                             - 49 -
section_archive/crimjust_standards_discovery_blk.html#2.1         [https://perma.cc/3UWQ-

4SQQ] (emphasis added).

      In Appendix C to the Supplement,8 the Rules Committee addressed the differences

between proposed Maryland Rule 4-263(d)(7)(B) and ABA Standard 11-2.1(a)(vii):

      [Maryland] Rule 4-263(d)(7), when coupled with [Maryland Rule 4-
      263](d)(6)(G)[,] is generally consistent with [ABA Standard 11-2.1], but
      there are some differences. As to [pretrial] identification evidence, [] ABA
      Standard [11-2.1(a)(vii)] would seem to apply to the [pretrial] identification
      (or not) of anyone; [Maryland Rule 4-263](d)(6)(G) and (d)(7) cover only
      [pretrial] identifications of the defendant or co-defendant by a State’s
      witness (or [pretrial] failure to make such an identification). [Maryland
      Rule 4-263](d)(7) follows the current Rule, and the Rules Committee saw
      no need to expand the Rule. The ABA Standard requires only that the State
      inform the defense of electronic surveillance and does not require disclosure
      of relevant material concerning it. To that extent, subsection (d)(7) is broader
      than the ABA Standard. With respect to the disclosure of information
      regarding specific searches and seizures, subsection (d)(7) is comparable to
      ABA Standard 11-2.1(d).

Rules Committee, Supplement to One Hundred Fifty-Eighth Report at 41-42 (emphasis

added).

      From our perspective, there is nothing in the history of Maryland Rule 4-263 to

indicate that the omission of the word “co-defendant” in Maryland Rule 4-263(d)(7)(B)

was unintentional or an oversight. We are aware that Green contends that the history of

Maryland Rule 4-263(d)(7)(B) demonstrates an intent to include co-defendants and to

harmonize the Rule with the ABA Standards concerning discovery. What Green draws our

attention to about the history of Maryland Rule 4-263(d)(7)(B) is not persuasive. The



      8
       Unlike a Committee Note, an appendix to a Report of the Rules Committee does
not become incorporated into the Maryland Rules.

                                           - 50 -
passage in Appendix C is a far cry from evidencing an intent to have Maryland Rule 4-

263(d)(7)(B) apply to pretrial identifications of a co-defendant. The passage references the

respective requirements of Maryland Rule 4-263(d)(6)(G) and Maryland Rule 4-

263(d)(7)(B), and explicitly states an intent not to expand Maryland Rule 4-263(d)(7)(B).

ABA Standard 11-2.1(a)(vii) is a broad standard that applies to numerous discovery

requirements, and the desire to harmonize Maryland Rule 4-263 with the ABA Standards

in no way reflects the purpose to expand Maryland Rule 4-263(d)(7)(B) to require

disclosure of pretrial identifications of co-defendants.

       It is significant that the Rules Committee stated that it “saw no need to expand”

Maryland Rule 4-263 with respect to pretrial identifications or otherwise. It is reasonable

to infer from this statement that the Rules Committee considered, but intentionally

refrained from, adding a reference to co-defendants to proposed Maryland Rule 4-

263(d)(7)(B). Indeed, the Rules Committee included a reference to co-defendants in

proposed Maryland Rule 4-263(d)(6)(G), which would require the State to disclose a

failure “to identify the defendant or a co-defendant” pretrial.         Rules Committee,

Supplement to One Hundred Fifty-Eighth Report at 84. And, tellingly, in Appendix C, the

Rules Committee stated that proposed Maryland Rule 4-263(d)(6)(G) lacked a counterpart

in ABA Standard 11-2.1. See id. at 40. In other words, the Rules Committee included a

reference to co-defendants in proposed Maryland Rule 4-263(d)(6)(G) on its own initiative,

not in the course of following ABA Standard 11-2.1. This circumstance demonstrates that

the Rules Committee was well aware that it could include a reference to co-defendants in

proposed Maryland Rule 4-263(d)(7)(B).          And, by its own assessment, the Rules


                                            - 51 -
Committee knew that ABA Standard 11-2.1(a)(vii) “would seem to apply to the

identification (or not) of anyone[.]” Rules Committee, Supplement to One Hundred Fifty-

Eighth Report at 41. Nonetheless, the Rules Committee “saw no need to expand” Maryland

Rule 4-263’s requirements regarding disclosure of pretrial identifications. Id. This history

reinforces our conclusion that the absence of a reference to a co-defendant in proposed

Maryland Rule 4-263(d)(7)(B) was intentional.

       In sum, Maryland Rule 4-263(d)(7)(B)’s plain language and history compel our

holding that Maryland Rule 4-263(d)(7)(B) does not require as a general matter the State

to disclose during discovery a State’s witness’s pretrial identification of a co-defendant.

We hold that the State’s obligation under Maryland Rule 4-263(d)(7)(B) is governed by its

plain language—i.e., the State is obligated to disclose “relevant material or information

regarding . . . pretrial identification of the defendant[.]” There may be cases, such as this

one, in which a defendant contends that a pretrial identification of a co-defendant

constitutes relevant information regarding the pretrial identification of the defendant.

Below in Part II, we address whether the pretrial identification of the co-defendant in this

case was subject to disclosure under Maryland Rule 4-263(d)(7)(B) as relevant material or

information regarding the pretrial identification of the defendant.

              II. Pretrial Identification of the Co-Defendant in this Case

                                The Parties’ Contentions

       Green contends that, under this case’s circumstances, Maryland Rule 4-

263(d)(7)(B) required the State to disclose Carter’s identification of Copeland as the person

who was not the shooter because that identification necessarily implicated Green as the


                                           - 52 -
shooter. Stated otherwise, Green argues that Carter’s identification constituted “relevant

material or information regarding . . . pretrial identification of the defendant[.]” Md. R. 4-

263(d)(7)(B). Green asserts that the Court of Special Appeals erred in concluding that

adopting his position would cause the State’s discovery obligations to depend on the

defense’s trial strategy. Green maintains that the record demonstrates that the State

intended to introduce Carter’s identification of Copeland, regardless of his trial strategy.

Green contends that, had his trial counsel known of Carter’s pretrial identification of

Copeland, the defense’s trial strategy might have differed.

       Green argues that his position is supported by Collins,

373 Md. at 146

 n.9,

 n.9, in which this Court commented that “the State was required by [Maryland Rule]

4-263[(d)(7)(B)] to produce not only statements containing the identification, but also any

and all other statements made by [the State’s witness] regarding who[m] he saw or did not

see commit the act.” Green asserts that Carter’s pretrial identification of Copeland was a

statement regarding whom she did not see perform the shooting. Green contends that the

importance of Carter’s identification of Copeland establishes that the error was not

harmless. Green argues that the prosecutor’s reliance on Carter’s identification during the

State’s closing argument demonstrated the importance of Carter’s identification to the

State’s case.

       The State responds that Maryland Rule 4-263(d)(7)(B)’s use of the words “relevant”

and “regarding” refer to circumstances surrounding a pretrial identification of a

defendant—not a pretrial identification of a co-defendant.         The State contends that

requiring the disclosure of a pretrial identification of a co-defendant expands the meaning


                                            - 53 -
of “relevant” and “regarding,” such that Maryland Rule 4-263(d)(7)(B) would fail to

provide clear notice to the State regarding its discovery obligations. The State argues that,

although Carter testified that she told detectives that she could identify Copeland, it is

unclear whether this occurred “pretrial.” The State asserts that, in the event of a discovery

violation, the circuit court should impose the least severe sanction, that is consistent with

Maryland Rule 4-263’s purposes, and that, in this case, the proper remedy was permitting

cross-examination of Carter about her pretrial identification of Copeland.

                                    Relevant Case Law

       In Williams,

364 Md. at 164

771 A.2d at 1084

, this Court held that a law

enforcement officer’s surveillance observations of the defendant, if used by the State for

purposes of identification, is a pretrial identification subject to disclosure under Maryland

Rule 4-263(d)(7)(B). In Williams,

id. at 178, 167-68

771 A.2d at 1092, 1086

, this Court

determined that the State violated Maryland Rule 4-263(d)(7)(B) where, before trial, a

prosecutor proffered that a law enforcement officer could not identify the defendant, but,

at trial, the officer testified that he had made surveillance observations of the defendant and

then identified the defendant in court. Of particular significance to this case, this Court

concluded that the information that may be subject to mandatory disclosure under

Maryland Rule 4-263(d)(7)(B) is not limited to State-orchestrated identification

procedures, such as showups, lineups, and photographic arrays. See

id. at 172-73

.

       In Williams,

id. at 164-65

771 A.2d at 1084

, the defendant was charged with

distribution of cocaine; the charges stemmed from the execution of a search warrant at an


                                            - 54 -
apartment. The State contended that, shortly before execution of the warrant, the defendant

entered the apartment, which was under law enforcement surveillance, to deliver cocaine.

See

id. at 165

. In Williams,

id. at 166

, in response to

a request for disclosure from the defendant’s counsel, the State filed discovery stating that

the defendant had not been identified through a pretrial identification procedure.

Subsequently, the defendant moved to suppress any unlawful pretrial identifications of

him. See

id. at 166

. Immediately prior to a hearing on the motion to

suppress, the prosecutor proffered that the law enforcement officer’s testimony would not

be an identification because the officer would testify only as to the general description of

a man who entered the apartment. See

id. at 166

. At the hearing, the

prosecutor again proffered that, while surveilling an apartment for suspected drug activity,

a law enforcement officer had seen a man enter the apartment. See

id. at 167

. The prosecutor also proffered that the officer had observed “the stature, the size, the

height,” and race of the man who entered the apartment. See

id. at 167

.

The prosecutor proffered, however, that the officer would not be able to identify the man

who entered the apartment as the defendant. See

id. at 166-67

771 A.2d at 1085-86

. The

trial court found that no pretrial identification of the defendant had occurred, and

determined that the State had complied with its discovery obligations. See

id. at 167

. At an unrelated pretrial motion hearing, the prosecutor again indicated that

the law enforcement officer could identify the man who entered the apartment only by

“size, height, and weight[.]” See

id. at 167

.

       Contrary to the prosecutor’s multiple proffers, at trial, the officer identified the


                                           - 55 -
defendant as the man who entered the apartment. See

id. 167-68

. The

defendant’s counsel objected and moved to strike the officer’s identification of the

defendant. See

id. at 168

. The trial court overruled the objection and

denied the motion to strike. See

id. at 168

.

       Only one State’s witness other than the officer placed the defendant in the apartment

on the night in question. See

id. at 165

. Testifying pursuant to a plea

agreement, the witness stated that the defendant entered the apartment, put a foil-wrapped

package on the kitchen counter, and said to “take whatever off the top.”

Id. at 165

. After the defendant left the apartment, law enforcement officers executed a

search warrant and found cocaine in the apartment. See

id. at 165

771 A.2d at 1084-85

.

       After being convicted, the defendant moved for a new trial, contending that the State

had violated Maryland Rule 4-263 by failing to disclose during discovery the officer’s

pretrial identification of the defendant. See Williams,

364 Md. at 168

.

The trial court denied the motion for a new trial, determining that the State had not withheld

a pretrial identification of the defendant by the officer, as the prosecutor did not know that

the officer had made an out-of-court identification of the defendant and would identify the

defendant at trial. See

id. at 168

771 A.2d at 1086-87

. In other words, the trial court found

that the inaccuracy in the prosecutor’s proffer had been inadvertent because the prosecutor

had been surprised by the officer’s identification of the defendant. See

id.

 at 169 n.9, 168,

771 A.2d at 1087

 n.9, 1086. The Court of Special Appeals affirmed, and this Court

reversed and remanded for a new trial. See

id. at 168, 181

771 A.2d at 1087, 1094

.

       As a threshold matter, in Williams,

id. at 172

771 A.2d at 1088-89

, this Court


                                            - 56 -
observed that the case involved an issue of first impression—namely, whether a law

enforcement officer’s surveillance observations can be subject to mandatory disclosure

under Maryland Rule 4-263(d)(7)(B).         The State contended that Maryland Rule 4-

263(d)(7)(B)

       is limited to [S]tate-orchestrated identification procedures, such as a
       photographic array, a show[]up, or a line[]up, because a purpose of the
       discovery disclosures is to ‘force the defendant to file certain motions before
       trial, including a motion to suppress . . .’ and a [law enforcement] officer’s
       surveillance observations would not be the subject of such a pretrial motion.

Id. at 172

(ellipsis in original) (citation omitted).

This Court “f[ou]nd the State’s position faulty[,]” and stated in relevant part:

Simply because we recognize the relationship between the discovery and
pretrial motions rules, in that discovery is necessary so that mandatory
pretrial motions can be filed, does not mean that we limit discovery to strictly
that which may be utilized in support of a pretrial motion. . . . Relevancy is
not limited to material or information which would tend to support a motion
to suppress. Material or information is also producible under [Maryland]
Rule 4-263[(d)(7)] if it supports the State’s proposed use of validly obtained
material or information and the denial of a defendant’s suppression motion.
Generally speaking, discovery disclosures may, indeed, assist a
defendant in determining whether certain motions can be filed prior to trial[,]
and thus expedite the trial process; however, the fact that discovery may
advance that goal is not dispositive of other laudable goals. We have
repeatedly insisted that discovery rules should assist the defendant in
preparing a defense and protect him [or her] from surprise. One can hardly
imagine a greater obstacle to a[ defendant’s] defense than the State’s
declaration prior to trial that the only corroborating witness could not
specifically identify the defendant, while the testimony of the witness at trial
was nothing shy of a clear and positive identification—“it was [the
defendant] who is seated at the defense table . . .” Identification testimony
may be outcome determinative and hence, any solid preparation of a defense
demands this information. Furthermore, unlike statements made by the
defendant, identification testimony naturally comes from third parties. As
such, it is information with which, absent the State’s disclosure, a defendant
may never be familiar until trial. To prevent unfair surprise, disclosure of
identification testimony is required.

- 57 -

Id. at 173-74

771 A.2d at 1089-90

 (second ellipsis in original) (brackets, citations,

footnotes, and internal quotation marks omitted).

       This Court held that the State violated Maryland Rule 4-263(d)(7)(B) by failing to

provide “complete and accurate information regarding the extent to which [the officer], a

witness closely identified with the State, could identify” the defendant.

Id. at 178

. More specifically, this Court “conclude[d] that [the officer]’s surveillance

observation, if used by the State for purposes of identification, [wa]s ‘relevant material

regarding a pretrial identification’ under [Maryland] Rule 4-263[(d)(7)(B)] and disclosure

[wa]s required.”

Id. at 178

. This Court determined that “the objectives

of discovery were not realized” because discovery “not only failed to assist [the defendant]

with his defense, but [also] failed to protect [the defendant] from unfair surprise.”

Id. at 178

.

       This Court rejected the State’s argument that it had not violated Maryland Rule 4-

263(d)(7)(B) because the prosecutor had disclosed that the officer had seen a man of the

defendant’s size and race enter the apartment. See

id. at 175

771 A.2d at 1090-91

. This

Court noted that the prosecutor had unequivocally proffered that the officer could not

identify the defendant; thus, the prosecutor’s proffer was inconsistent with the officer’s in-

court identification of the defendant. See

id. at 175

771 A.2d at 1091

.

       This Court concluded that the circumstance “that the [prosecutor] was ‘surprised’

[by the officer’s in-court identification of the defendant] ha[d] no bearing on whether the

defendant was prejudiced by the” prosecutor’s inaccurate proffer.

Id.

 at 176 n.21, 771 A.2d



                                            - 58 -
at 1091 n.21. In other words, this Court held that “‘surprise’ [on the part of the prosecutor]

does not excuse or mitigate the prejudice to the defendant.”

Id. at 176

771 A.2d at 1091

.

This Court observed that “the State is charged with the knowledge of all seemingly

pertinent facts related to the charge [that] are known to” law enforcement officers.

Id. at 177

 (citation and internal quotation marks omitted). This Court further

explained why it does not matter whether a prosecutor is aware of facts that law

enforcement officers know:

       If [a prosecutor]’s lack of knowledge could excuse, or even mitigate[,] the
       prejudicial effect of the undisclosed information, [prosecutor]s would most
       effectively operate in a vacuum because, by removing themselves from the
       privity of [law enforcement officers’] testimony and evidence, [prosecutor]s
       could slip beyond the grasp of discovery rules by claiming ignorance, and
       thereby force the defendant to enter trial unaware of the evidence to be
       offered against him [or her]. This is intolerable and totally adverse to one of
       the avowed purposes for discovery rules: to assist the defendant in preparing
       his [or her] defense and prevent unfair surprise at trial.

Id. at 177-78

 (emphasis in original).

       This Court held that the State’s violation of Maryland Rule 4-263(d)(7)(B) was

prejudicial, and thus was not harmless error, because the officer’s testimony was “the only

corroborating witness identification of the defendant[.]”

Id. at 179


(emphasis omitted). This Court noted that “a conviction may not rest on the uncorroborated

testimony of an accomplice.”

Id. at 179

 (citation omitted). This Court

determined that, if the officer had not identified the defendant, there would have been “a

strong basis for moving for judgment of acquittal[.]”

Id. at 179-80

. This

Court also observed that, at the conclusion of the bench trial, the trial court gave “great

weight” to the officer’s testimony.

Id. at 180

159 Md. App. 562, 575, 574

. Ultimately, this Court


                                            - 59 -
concluded that it was likely that the State’s violation of Maryland Rule 4-263(d)(7)(B)

contributed to the conviction. See

id. at 181

771 A.2d at 1094

.

       In Simons v. State,

860 A.2d 416, 424, 423

 (2004),

the Court of Special Appeals held that the State violated Maryland Rule 4-263(d)(7)(B) by

failing to disclose that, before trial, a State’s witness told law enforcement officers that she

had seen the defendant near the scene of the crime around the time the crime was

committed. Specifically, the Court stated:

       While we shall not attempt to delineate the “limiting principle that prevents
       all statements about interactions with a defendant from constituting pre-trial
       identifications,” we are persuaded that the holding in Williams constrains us
       to conclude that, when the pretrial statement of an eyewitness directly
       implicates the defendant in the commission of the crime, such a statement is
       the equivalent of the State’s test for what constitutes an identification, i.e.,
       the witness’s ability to say, “this is the man.”

Simons,

159 Md. App. at 575

860 A.2d at 424

.

       In Simons,

id. at 566, 574

860 A.2d at 418, 423

, at trial, the defendant’s counsel

learned that a State’s witness had told officers that, on the night of a burglary, she saw the

defendant near the victim’s residence. The defendant’s counsel characterized the witness’s

statement to officers as a pretrial identification of the defendant. See

id. at 566

. The defendant moved to preclude the witness from identifying the defendant at

trial on the ground that the State had not disclosed the witness’s pretrial identification of

the defendant. See

id. at 566

. The trial court denied the motion to

preclude. See

id. at 566

. At trial, consistent with her statement to officers,

the witness testified that she had observed the defendant “‘walking back and forth’ in front

of” the victim’s residence on the night of the burglary.

Id. at 566

. The


                                             - 60 -
defendant was convicted, and the Court of Special Appeals reversed and remanded for a

new trial. See

id. at 564-65

860 A.2d at 417

.

       As a threshold matter, the Court of Special Appeals observed that it needed to

determine whether the witness’s statement to law enforcement officers constituted a

pretrial identification for the purpose of Maryland Rule 4-263(d)(7)(B). See

id. at 570

860 A.2d at 420

. The Court observed that, in Williams,

364 Md. at 173

771 A.2d 1082

, this

“Court dismissed the State’s contention that [Maryland] Rule [4-263(d)(7)(B)] is limited

to traditional pre[]trial identifications[,] such as show[]ups or line[]ups.” Simons,

159 Md. App. at 571

860 A.2d at 421

. The Court of Special Appeals stated that this Court’s holding

in Williams led to the conclusion that, where a pretrial statement of an eyewitness “directly

implicates the defendant in the commission of the crime,” that statement is the equivalent

of an identification, “i.e., the witness’s ability to say, ‘this is the man.’” Simons,

159 Md. App. at 575

860 A.2d at 424

.

       In Simons,

id. at 575

, the Court of Special Appeals determined that

the witness’s statement to law enforcement officers constituted a pretrial identification of

the defendant, and was subject to mandatory disclosure under Maryland Rule 4-

263(d)(7)(B).   The Court explained that the witness’s in-court identification of the

defendant was an “unfair surprise [that] was prejudicial to” him.

Id. at 574

. The Court observed that, if the defendant had known of the witness’s statement to

officers, that knowledge “could have influenced his decision to accept a plea bargain; he

could have questioned [the witness] about the identification before trial; conducted a

thorough investigation of the scene to assess [the witness]’s vantage point when she


                                            - 61 -
witnessed [the defendant] at the [victim’s residence]; and tested [the witness] on cross-

examination.”

Id. at 574

.

       The Court concluded that the State’s violation of Maryland Rule 4-263(d)(7)(B) was

not harmless because the witness was the only one who had observed the defendant near

the victim’s residence on the night of the burglary. See

id. at 577-78

860 A.2d at 425

.

The Court observed that, therefore, the witness’s identification testimony was “crucial to”

the State’s case.

Id. 578

860 A.2d at 425

.

                                         Analysis

       Here, we hold that, under this case’s circumstances, Carter’s pretrial identification

of Copeland as the person who was not the shooter was relevant information regarding the

pretrial identification of Green as the person who was the shooter, and was required to be

disclosed under Maryland Rule 4-263(d)(7)(B). The pretrial identification of Copeland as

the person who was not the shooter was the equivalent of the pretrial identification of Green

as the shooter, where the State’s theory of the case was, and its evidence showed, that

Green, Copeland, and Myers were the only people at the scene of the shooting, and that

Copeland was not the shooter.

       As a threshold matter, we are unpersuaded by the State’s contentions that the record

does not establish that Carter informed law enforcement officers of her ability to identify

Copeland before trial, and that Carter did not make a pretrial identification of Copeland.

In affirming the convictions, the Court of Special Appeals determined that the State’s

discovery obligations pursuant to Maryland Rule 4-263(d)(7)(B) are limited to the plain

language of the Rule, and that, because Carter’s identification of Copeland was an


                                           - 62 -
identification of someone other than the defendant, the State did not violate Maryland Rule

4-263(d)(7)(B). See Green,

231 Md. App. at 74

. As such, the Court of

Special Appeals did not expressly address the question of when Carter advised the

detectives that she could identify Copeland and whether this constituted a pretrial

identification.

The record demonstrates that Carter advised law enforcement officers before trial

of her ability to identify Copeland as the person who was not the shooter. It is undisputed

that, at trial, Carter testified that she saw two men at the scene of the shooting with Myers,

and she identified Copeland as the person who was not the shooter. It is also undisputed

that, one or two days after the shooting, Carter informed detectives that she was unable to

describe the face of either person—i.e. the shooter and the person who was not the shooter.

The record reflects that, at trial, Carter testified that, after the shooting, she recognized a

photograph of Copeland in the newspaper. Carter was uncertain of the date on which she

recognized Copeland. Carter acknowledged that, upon recognizing the photograph of

Copeland, she did not call anyone or inform anyone. Green’s counsel asked Carter,

however: “[W]hen did you eventually tell any of the detectives that you knew who []

Copeland was?” Significantly, Carter responded: “When I went over -- over everything

again with them, what I saw -- everything that I saw that day.”

To be sure, Carter did not specify when she “went over everything again” with the

detectives. But, twenty days before the first day of trial, the State requested a writ to

compel Copeland to appear at trial. Notably, Copeland’s plea agreement provided that, if

either party called Copeland as a witness in this case, he would invoke his privilege against

- 63 -
self-incrimination in response to any question of substance. As such, the State’s purpose

in securing Copeland’s appearance could not have been to call him as a witness. Instead,

as the prosecutor acknowledged at a bench conference, the State’s purpose was to have

Carter identify Copeland. Specifically, the prosecutor stated: “[T]he [S]tate’s intention at

this time -- and this was the reason for the writ for [] Copeland[.] . . . It is the [S]tate’s

proffer to the court that we believe that [] Carter, upon seeing [] Copeland, will be able to

positively identify him.” The State’s request for a writ to compel Copeland’s appearance

three weeks before trial leads to the inescapable conclusion that, sometime before the

request for the writ—i.e., pretrial—Carter told detectives that she recognized Copeland.

Otherwise, there would have been no reason for the State to request the writ for Copeland’s

appearance, as Copeland’s plea agreement with the State provided that he would invoke

his Fifth Amendment privilege against self-incrimination and not answer any substantive

questions.

More tellingly, though, at trial, at a bench conference during Carter’s testimony,

before her identification of Copeland, the prosecutor informed the circuit court: “We intend

to have [] Carter specifically . . . identify [] 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.” In other

words, before Carter’s identification of Copeland, the prosecutor advised that the sole

purpose of Copeland’s presence was for Carter to identify him.

Equally telling, the record reveals other circumstances giving rise to the conclusion

that the prosecutor intended for Carter to identify Copeland at trial—i.e., that Carter had

- 64 -
advised detectives pretrial of her ability to identify Copeland. Before opening statements,

the prosecutor stated that he wanted Copeland to appear in the courtroom during Carter’s

testimony so that she could identify him. During opening statement, the prosecutor said:

“[Y]ou have one eyewitness putting two people, one which will be very clearly identified

as [] Copeland and one that loosely identifies as [] Green, at the scene of the shooting[.]”

During direct-examination of Carter, the prosecutor asked Carter whether she would be

able to identify the tall, skinny man who had stood next to the Mustang’s driver’s door—

i.e., the person who was not the shooter—if he were shown to her. Carter responded in the

affirmative. At a bench conference, Green’s counsel expressed surprise that Carter would

be able to identify Copeland. In response, the prosecutor did not claim that he too was

surprised to learn that Carter could identify Copeland. Instead, the prosecutor stated that

“[t]here [wa]s no surprise” because Green’s counsel knew that multiple witnesses could

identify Copeland. Significantly, at no time did the prosecutor advise the circuit court that

he, like Green’s counsel, had been unaware of Carter’s ability to identify Copeland. The

State’s request for a writ nearly three weeks before trial, as well as the prosecutor’s

announcement at a bench conference and during the State’s opening statement that Carter

was expected to identify Copeland, demonstrate that Carter’s in-court identification of

Copeland was not unexpected—to the contrary, it was planned in advance based on Carter

having informed detectives pretrial of her ability to identify Copeland.

Our precedent mandates the conclusion that Carter’s informing detectives before

trial of her ability to identify Copeland as the person who was not the shooter constituted

a pretrial identification of Copeland. For purposes of Maryland Rule 4-263(d)(7)(B), the

- 65 -
phrase “pretrial identification” is not “limited to [S]tate-orchestrated identification

procedures, such as a photographic array, a show[]up, or a line[]up[.]” Williams,

364 Md. at 172-73

. For example, in Williams,

id. at 178

, this

Court “conclude[d] that [a law enforcement officer]’s surveillance observation, if used by

the State for purposes of identification, [wa]s ‘relevant material regarding a pretrial

identification’” under Maryland Rule 4-263(d)(7)(B). And, notably, in Simons,

159 Md. App. at 574-75

, guided by this Court’s holding in Williams, the Court of

Special Appeals held that a pretrial identification occurred where a witness stated to law

enforcement officers that she saw the defendant near the scene of the crime around the time

the crime was committed. Here, a pretrial identification of Copeland occurred when Carter

informed detectives before trial that she could identify Copeland as being present with the

victim but not being the shooter.

       It is of no moment that Carter may or may not have informed law enforcement

officers that she recognized Copeland in a photograph in a newspaper, or that the officers

were not present when Carter viewed the newspaper. Just as it is unnecessary for an

identification to occur during a lineup, showup, or other formal identification procedure,

see Williams,

364 Md. at 172-73

, it is also unnecessary for an

eyewitness’s recognition of a person who was at the scene of a crime to occur in front of

law enforcement officers. What matters is that the eyewitness advises officers of his or her

ability to identify the person. At that point, the State is charged with knowledge of the

eyewitness’s ability to identify the person. As we explained in Williams,

id. at 177

, “the State is charged with the knowledge of all seemingly pertinent facts


                                           - 66 -
related to the charge [that] are known to” law enforcement officers. (Citation and internal

quotation marks omitted).

       Having determined that Carter made a pretrial identification of Copeland and that

law enforcement officers were aware of the identification, we must next determine whether

that identification was subject to mandatory disclosure under Maryland Rule 4-

263(d)(7)(B). We start by reviewing Maryland Rule 4-263(d)(7)(B)’s language. Maryland

Rule 4-263(d)(7)(B) does not simply require disclosure of pretrial identifications of

defendants. Rather, Maryland Rule 4-263(d)(7)(B) requires disclosure of “[a]ll relevant

material or information regarding . . . pretrial identification of the defendant by a State’s

witness[.]” (Emphasis added).

       In Collins,

373 Md. at 146

, this Court underscored the importance

of the phrase “relevant material or information regarding” in Maryland Rule 4-

263(d)(7)(B). Specifically, this Court stated its holding as follows: “[The witness]’s prior

inconsistent statement [about not seeing anyone at the scene of the crime], under the

circumstances of this case, falls within the scope of ‘relevant material or information

regarding pretrial identification of the defendant by a witness for the State.’”

Id. at 146

 (emphasis in original) (footnote omitted). The phrase “relevant material

or information regarding” is plainly not limited to the mere occurrence of a pretrial

identification of a defendant.

       Instead, the phrase “relevant material or information regarding” renders Maryland

Rule 4-263(d)(7)(B) applicable to more than just a pretrial identification procedure

identifying the defendant. For example, in Collins,

id. at 146

, this Court


                                           - 67 -
held that Maryland Rule 4-263(d)(7)(B) requires disclosure of a failure to identify the

defendant pretrial. And, in Williams,

364 Md. at 178, 167-68, 180

771 A.2d at 1092, 1086, 1093

, this Court concluded that the State violated Maryland Rule 4-263(d)(7)(B)

where, contrary to a prosecutor’s proffer, a law enforcement officer testified that he had

observed the defendant during surveillance, where the officer had not participated in a

pretrial photographic array or lineup identifying the defendant. Thus, in both Collins and

Williams, this Court found violations of Maryland Rule 4-263(d)(7)(B), even though there

had not been a pretrial identification procedure, such as a photographic array or lineup, in

which the defendant was identified.9

       In addition to considering Maryland Rule 4-263’s language, we also take into

account its purposes—“to assist defendants in preparing their defense and to protect them

from unfair surprise.” Collins,

373 Md. at 146

 (quoting Williams,

364 Md. at 172

). “The duty to disclose pre[]trial identifications . . . is

properly determined by interpreting the plain meaning of [Maryland] Rule [4-263] with


       9
         To be subject to mandatory disclosure under Maryland Rule 4-263(d)(7)(B),
material or information regarding pretrial identification of the defendant must be “relevant”
to the identification of the defendant, but it is not necessary that the material or information
be found to be “material.” Although one of Maryland Rule 4-263’s predecessors limited
discoverable information to that which was “material,” Maryland Rule 4-263 includes no
such limitation. See Williams,

364 Md. at 171

 & n.12,

771 A.2d at 1088

 & n.12. For
Maryland Rule 4-263’s purposes, generally, information or material is “relevant if it
reasonably is calculated to lead to the discovery of admissible evidence and their probative
value is not outweighed by any privacy interests, confidentiality, privilege, or other
conflicting interest, including the burden of production.” Cole v. State,

378 Md. 42, 63

835 A.2d 600, 611-12

 (2003). By contrast, under one of Maryland Rule 4-263’s
predecessors, to obtain information during discovery, the defendant was required to show
that the information “may be material to the preparation of his [or her] defense and that the
request is reasonable.”

                                             - 68 -
proper deference to these policies.” Collins,

373 Md. at 146-47

 (quoting

Williams,

364 Md. at 172

). Guided by Maryland Rule 4-263(d)(7)(B)’s

language and purposes, as well as our holdings in Collins and Williams, we conclude that

a pretrial identification of a co-defendant is relevant information regarding pretrial

identification of the defendant where the pretrial identification of the co-defendant is

effectively the equivalent of a pretrial identification of the defendant. Stated otherwise,

under the circumstances of this case, information regarding the pretrial identification of

Copeland was relevant information regarding the pretrial identification of Green.

The facts of this case serve as a prime example of a pretrial identification of a co-

defendant being effectively the equivalent of a pretrial identification of the defendant. It

is undisputed that, at the time of the shooting, Myers, the victim, was in his truck, which

was facing Copeland’s Mustang. Carter testified that, as she was driving by the scene of

the shooting, she saw two men. One man was shorter and stouter, wearing a hoodie, and

standing off to the side of the road. The other man was taller and skinnier, wearing a hat

with snowflakes, and standing near the Mustang’s driver’s seat. Carter heard a gunshot,

looked into her driver’s side-view mirror, and saw the shorter, stouter man shoot into the

truck three times. Carter had not gotten a look at the face of the shorter, stouter man—i.e.,

the shooter—because his hood was up. Carter had, however, gotten a look at the face of

the tall, thin man—i.e., the person who was not the shooter. The record establishes that

prior to trial Carter informed law enforcement officers of her ability to identify Copeland

as the person who was not the shooter. And, at trial, Carter unequivocally identified

Copeland as the person who was not the shooter. The State’s theory of the case was that

- 69 -
Green was the person with Copeland and was the shooter.

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.

Carter’s pretrial identification of Copeland was in essence the equivalent of a pretrial

identification of Green as the shooter. 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).

We disagree with the State’s assertion at oral argument that our holding requires

prosecutors to be “soothsayers” by predicting what defense strategy will be. Indeed, we

conclude that the Court of Special Appeals erred in determining that the State’s discovery

obligations would depend on the defendant’s trial strategy, “which often will be unknown

prior to trial.” Green,

231 Md. App. at 74

. The Court of Special Appeals

reasoned that Carter’s identification of Copeland as the person who was not the shooter

implicated Green as the shooter only because Green testified that he, Copeland, and Myers

were the only ones at the scene of the shooting. See

id. at 73-74

. The

record, however, establishes that Carter told detectives before trial that she could identify

Copeland as the person who was not the shooter, and that the State intended to use Carter’s

identification of Copeland at trial in its case-in-chief. We have no reason to imagine that

there will not be other cases in which the State may be aware that a witness’s pretrial

identification of a co-defendant will effectively identify the defendant. Our holding simply

requires the State to disclose information that would reasonably be expected to be known

to prosecutors, and that is relevant to the pretrial identification of the defendant.


                                             - 70 -
       Independent of Green’s testimony, Carter’s pretrial identification of Copeland was

known to the prosecutor and relevant to the pretrial identification of Green. The State’s

theory of the case was that only Green, Copeland, and Myers were at the scene of the

shooting. At trial, the State introduced evidence aimed at establishing that Green was the

third person at the scene of the shooting—i.e., that Green was the shooter. Watson, Myer’s

girlfriend, and both of Myers’s parents testified that, two days before the shooting, Green

and Copeland confronted Myers about the burglary of Copeland’s residence. Carter,

Wisniewski, Miller, and Deputy First Class Griffin testified that, around the time of the

shooting, two people were in or near a dark Mustang that was at or near the scene of the

shooting. Detective Swonger prepared Cellular Analysis Reports that showed that, around

the time of the shooting, Copeland’s and Green’s cell phones connected to cell towers in

the general vicinity of Myers’s residence. Peacock, Green’s girlfriend, testified that, on

the day of the shooting, Green told her: “Something bad might happen.” Significantly,

according to Peacock, later that day, Green told her that he had been present at the scene

of the shooting, but that he did not do it. During the State’s opening statement, the

prosecutor asserted that the short, stocky person who shot Myers loosely identified as

Green. During the State’s closing argument, the prosecutor contended: “The shooter was

the short[,] stocky guy[,] and had a bushy beard. [] Green was and is the shorter[,] stockier

guy[,] and had, by his own admission[,] and[,] again[,] as supported by the evidence we

presented, a bushy beard when [] Myers was shot.”

       In sum, the State presented evidence that Green, Copeland, and Myers were the only

people at the scene of the shooting. Before Green testified, Carter’s identification of


                                           - 71 -
Copeland as the person who was not the shooter, in the context of the State’s theory of the

case and the evidence presented at trial in support of that theory, identified Green as the

shooter. The State obviously knew in advance of trial that Carter’s identification of

Copeland as the person who was not the shooter was not only relevant, but also highly

probative as to the issue of the shooter’s identity.

       Our holding does not require prosecutors to predict the future. As a prosecutor

prepares for trial, he or she becomes aware of evidence that identifies the defendant. A

prosecutor is in a position to determine whether a witness’s pretrial identification of a co-

defendant is the equivalent of a pretrial identification of the defendant as the person

responsible for the crime. For example, here, the prosecutor was certainly aware in

advance of trial of the State’s theory that Green, Copeland, and Myers were the only people

at the scene of the shooting and that Copeland was not the shooter. The prosecutor knew

in advance that, if Carter identified Copeland as the person who was not the shooter, her

identification of Copeland would essentially identify Green as the shooter.            It was

incumbent upon the prosecutor under Maryland Rule 4-263(d)(7)(B) to disclose Carter’s

pretrial identification of Copeland, as Carter’s pretrial identification of Copeland was

relevant information as to the pretrial identification of Green as the shooter.

       Having established that the State violated Maryland Rule 4-263(d)(7)(B) by failing

to disclose Carter’s pretrial identification of Copeland, we must next inquire as to whether

the error was harmless. Under the doctrine of harmless error, “[a]n appellate court does

not reverse a conviction based on a trial court’s error or abuse of discretion where the

appellate court is satisfied beyond a reasonable doubt that the trial court’s error or abuse of


                                            - 72 -
discretion did not ‘influence the verdict’ to the defendant’s detriment.” Hall v. State,

437 Md. 534, 540-41

87 A.3d 1287, 1291

 (2014) (quoting Perez v. State,

420 Md. 57, 66

21 A.3d 1048, 1054

 (2011)) (brackets omitted); see also Dorsey v. State,

276 Md. 638, 659

350 A.2d 665, 678

(1976).

Here, Carter’s identification of Copeland as the person who was not the shooter was

critical to the State’s case. Carter was the State’s only eyewitness to the shooting. Carter’s

testimony that Copeland was not the shooter was the only evidence that directly identified

Green as the shooter. The other State’s witnesses, at best, gave testimony demonstrating

that Green and Copeland confronted Myers and testimony that placed Green at the scene

of the shooting. For example, Watson and both of Myers’s parents testified that, two days

before the shooting, Green and Copeland visited Myers’s residence and confronted him

about the burglary of Copeland’s residence. Detective Swonger’s Cellular Analysis

Reports established that, around the time of the shooting, Copeland’s and Green’s cell

phones connected to cell towers in the general vicinity of Myers’s residence. Peacock

testified that, on the day of the shooting, Green said that he had been at the scene of the

shooting, but denied that he had done it. Although the State produced evidence placing

Green at the scene of the shooting and demonstrating that Green and Copeland had

confronted Myers, Carter was the only eyewitness to the shooting. Significantly, the

prosecutor referred to Carter’s identification of Copeland as the person who was not the

shooter at least once during the State’s opening statement, and multiple times during the

State’s closing argument. During the State’s closing argument, the prosecutor referred to

Carter’s identification of Copeland as a “key piece of evidence.”

- 73 -
Undeniably, the State’s failure to disclose Carter’s pretrial identification of

Copeland prejudiced Green. Green’s counsel stated that it was a “surprise” to learn at trial

that Carter was expected to identify Copeland. The State’s failure to disclose Carter’s

pretrial identification of Copeland prevented Green’s counsel from attempting to interview

Carter about her identification of Copeland, and potentially performing research to

determine if, or when, Carter had seen Copeland’s photograph in a newspaper. Green’s

counsel lacked the ability to prepare to cross-examine Carter regarding the timing or

remoteness of her pretrial identification of Copeland. Green’s counsel was unable to

prepare to question Carter as to whether anything in the newspaper article or other

circumstances may have influenced Carter’s testimony. Although Green’s counsel

theoretically could have formulated such questions without being told of Carter’s pretrial

identification of Copeland before trial, being aware of the pretrial identification would

undoubtedly have aided Green’s counsel’s trial preparation.

In addition to providing Green’s counsel the opportunity to interview Carter about

her identification of Copeland and perform pretrial research, disclosure of Carter’s pretrial

identification of Copeland may have “influenced [Green’s] decision to accept a plea

bargain[.]” Simons,

159 Md. App. at 574

. In any event, “[i]t is not for

us to determine what, if any, response the defense could have prepared had it known of the

prior inconsistent statement. It is enough to find that the defense was denied an adequate

opportunity to do so, to its prejudice.” Collins,

373 Md. at 148

.

       In sum, we are far from convinced beyond a reasonable doubt that the State’s

violation of Maryland Rule 4-263(d)(7)(B) did not influence the verdict to Green’s


                                           - 74 -
detriment. A failure to disclose a witness’s pretrial identification is prejudicial, and thus

not harmless error, where the witness’s identification is critical to the State’s case. For

example, in Williams,

364 Md. at 179

, this Court held that a failure to

disclose a witness’s pretrial identification was not harmless error where an accomplice was

the only other witness to place the defendant at the scene of the crime. Similarly, in

Simons,

159 Md. App. at 578

860 A.2d at 425

, the Court of Special Appeals held that a

violation of Maryland Rule 4-263(d)(7)(B) was not harmless error where the witness in

question was the only person who saw the defendant at the scene of the crime around the

time the crime occurred.

       We reject the State’s contention that cross-examination was the proper remedy for

the violation of Maryland Rule 4-263(d)(7)(B) in this case. As discussed above, the

inability to engage in pretrial preparation hindered Green’s counsel’s ability to adequately

prepare a defense and cross-examine Carter about her pretrial identification of Copeland.

And, again, it need not be certain that Green’s counsel would have actually prepared

differently had he known in advance of Carter’s pretrial identification of Copeland. All

that is required to find that the violation was not harmless error is the circumstance that

Green’s counsel was denied the opportunity to prepare differently. See Collins,

373 Md. at 148