eCases

. 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

. 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

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

816 A.2d at 922

. The prosecutor responded that the omission of the
witness’s pretrial failure to identify the defendant was inadvertent. See

816 A.2d at 922

. The trial court granted the motion to reopen. See

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,

816 A.2d at

928 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,

816 A.2d at

928 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

. 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

.
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

. 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

.
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

. 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,

159 Md. App. 562

, 575, 574,

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, 149 A.3d at 1171. 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

364 Md. at 178, 167-68, 180

, this Court
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held that Maryland Rule 4-263(d)(7)(B) requires disclosure of a failure to identify the
defendant pretrial. And, in Williams,

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.”
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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
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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, 149 A.3d at 1171. 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, 149 A.3d at 1171. 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.
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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