Y.Y. v. State

*750Concurring Opinion by

EYLER, DEBORAH S., J.

Although I agree with the reasoning of the majority and the outcome of the appeal, I respectfully concur because I disagree with the decision to use a pseudonym to conceal the defendant/appellant’s identity in this opinion. This is the first and only published opinion of this Court or the Court of Appeals in a non-investigatory criminal case in which a pseudonym has been substituted for the name of the defendant/appellant. Discretion to use a pseudonym only should be exercised rarely, and this case does not warrant doing so.1

*751After the police executed a search warrant for the appellant’s house and recovered 8.88 grams of crack cocaine, $4,000 in U.S. currency, and drug packaging items, he was charged with possession of cocaine with intent to distribute and with simple possession. Before then, he never acted as an informant or in cooperation with the State. In an effort to help himself in this case, the appellant entered into the plea agreement that is the subject of this appeal. The agreement gave him two immediate benefits, which he retains: the State forfeited its right to seek a mandatory 10-year sentence and further forfeited its right to bring charges against his wife.

The appellant would have received a third benefit—a greatly reduced sentence, ie., 18 months with all but one day suspended—if he had performed as promised by signing up as a confidential informant, identifying three kilo-level cocaine dealers, and engaging in controlled buys with each one that produced an arrest from which the prosecutor’s office could pursue felony convictions. The appellant only partially performed (if that), but was given a significant benefit of the doubt by the State. He participated in a controlled buy of PCP from a seller who was arrested for that sale. Apparently, the seller was found to have been in possession of cocaine. Although there is no evidence that the seller was indicted for cocaine dealing or possession, the appellant was given credit for that arrest. The appellant also participated in a controlled buy of PCP from another seller who then was murdered; he was given credit for that transaction as well, although felony *752charges obviously could not be brought. The appellant did not identify a third person or participate in a third transaction.2

After the plea was accepted by the court, sentencing was delayed repeatedly so the appellant could perform his end of the plea agreement. When it was clear to the appellant that the State was taking the position that he had not complied with the plea agreement, and a firm sentencing date was scheduled, the appellant filed a motion to enforce the plea agreement. A two-day evidentiary hearing was held, during which testimony was taken from the appellant and the prosecutor. A May 12, 2009 letter setting forth the terms of the plea agreement was introduced and the witnesses testified about what had been done, and had not been done, to perform under the plea agreement.

During the proceedings below, the appellant did not ask the court to seal the transcripts of any of the proceedings or to use a pseudonym instead of his real name.

In this Court, the appellant filed a brief using his real name. Thereafter, he filed two petitions for bail pending appeal, both denied, and a “Motion for Appropriate Relief.” In all three, he proceeded upon the clearly stated expectation that he would prevail in this appeal.3 The appellant’s “Motion for Appropriate Relief’ reads as follows:

COMES NOW the appellant, by and through counsel, and moves for appropriate relief, pending appeal, and for his reasons, states as follows:
1. This appeal is from the denial of a motion for enforcement of a plea' agreement, which involved Appellant’s *753cooperation with police in the apprehension of other defendants and potential defendants;
2. Among the appropriate avenues of relief would be the sealing of the file of this Honorable Court, not reporting the decision of this Honorable Court, and referring to the appellant by his initials, only, [sic] appears likely to triumph in this appeal, as explained in Appellant’s brief; WHEREFORE, your Appellant prays that this Honorable Court issue an order adopting any or all of the appropriate relief mentioned above.

(Emphasis added.) The State did not file a response to either of the petitions for bail pending appeal or to the “Motion for Appropriate Relief.”

In this opinion, the majority has granted in part the appellant’s “Motion for Appropriate Relief’ implicitly, by referring to him by a pseudonym (“Y.Y.”). (As the quoted motion reveals, the appellant actually asked for his own initials to be used in any published opinion of this Court. His own initials are not Y.Y.)

As I have noted, there are no Maryland non-investigatory criminal cases in which a pseudonym has been used instead of the defendant/appellant’s name. In four published opinions the Maryland appellate Courts have addressed plea agreements in which the defendants acted as informants, always using their true names. See State v. Brockman, 277 Md. 687, 357 A.2d 376 (1976) (holding that Brockman was entitled to the benefit of a plea bargain in which he had agreed to identify other people with whom he was involved in a murder for hire); State v. Poole, 321 Md. 482, 583 A.2d 265 (1991) (holding that the trial court was bound by a plea agreement it had accepted under which Poole provided the police information relevant to the prosecution of certain criminals and a police officer); State v. Thompson, 48 Md.App. 219, 426 A.2d 14 (1981) (holding that, after Thompson performed under a plea agreement by giving the prosecutor information about drug cases the police were interested in, and the State performed under the plea agreement by placing the case against *754Poole on the stet docket, the case could not be removed from the stet docket); and Courtney v. Harford County, 98 Md. App. 649, 635 A.2d 8 (1994) (holding that Courtney, a marijuana trafficker, and his -wife were entitled to enforce a plea agreement in which Courtney had agreed to and did cooperate with the State by obtaining evidence about his supplier). There is nothing in these opinions to indicate that the defendant/appellants asked to be identified by pseudonyms, as the appellant in this case has done, or that, whether a request was made or not, this Court or the Court of Appeals considered whether to exercise discretion to substitute a pseudonym for the defendant/appellant’s name.

Although there are no published Maryland appellate opinions in criminal cases in which the defendant/appellant’s name has been concealed, on rare occasions, pseudonyms have been used for parties in civil cases. In Doe v. Shady Grove Adventist Hospital, 89 Md.App. 351, 598 A.2d 507 (1991), this Court reversed an order by a circuit court in a civil case denying the plaintiffs request to proceed anonymously. The plaintiffs cause of action was based on a claimed privacy violation. Specifically, the plaintiff sued a hospital, alleging that certain of its employees had improperly disclosed that he was suffering from the disease AIDS, thus breaching his right to medical privacy and causing him to suffer damages as a result. He -wished to use a pseudonym in his civil action because, if he did not, the injury he claimed he had suffered already, and that he was seeking to remedy, would be exacerbated.

This Court pointed out that it is well established in criminal law that the right to public access to trials and to records is inherent in the First Amendment to the federal constitution and in Article 40 of the Maryland Declaration of Rights; and that “the policy reasons enunciated by the Supreme Court in support of public access to criminal proceedings apply with equal force to civil proceedings.” 89 Md.App. at 359, 598 A.2d 507. We noted that, historically, both criminal and civil proceedings have been presumptively open to the public, both in terms of access to the court and to court records. Id. The *755right of public access is not absolute, however, and “may be limited ‘when an important countervailing interest is shown.’ ” Id. at 360, 598 A.2d 507 (quoting State v. Cottman Transmission Sys., Inc., 75 Md.App. 647, 656, 542 A.2d 859 (1988)). “ ‘Since the right of public access is firmly embedded in the First Amendment, ‘it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.’ ” Cottman, supra, at 657, 542 A.2d 859 (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982)).

In Doe, this Court concluded that the plaintiffs right to privacy concerning his medical condition was a compelling countervailing governmentally protected interest that warranted a narrow infringement upon the public’s right to know the details of his lawsuit by allowing him to proceed under a pseudonym.

More recently, in King v. State Farm Mut. Auto. Ins. Co., 157 Md.App. 287, 850 A.2d 428 (2004), we held that the trial court had erred by allowing an insurance company to proceed anonymously as a defendant in an uninsured/underinsured motorist case. We emphasized that the usual procedure in a civil case is that the identities of the parties are a matter of public record, and that only in exceptional cases will there be a deviation from that requirement. We quoted with approval the observations of the court in Doe v. Rostker, 89 F.R.D. 158, 161 (N.D.Cal.1981), in which the court analyzed for “classifiable characteristics” many cases in which requests by parties to proceed anonymously had been granted:

“[T]he most common instances are cases involving abortion, mental illness, personal safety, homosexuality, transsexuality and illegitimate or abandoned children in welfare cases. The common thread running through these cases is the presence of some social stigma or the threat of personal harm to the plaintiffs attaching to disclosure of their identities to the public record.”

157 Md.App. at 296, 850 A.2d 428. Finding that no such interests were implicated, this Court concluded that the trial *756court had erred and that the error was prejudicial, as the jurors’ lack of knowledge of who was involved in the lawsuit limited their ability to decide the issues before them.

In civil actions implicating the type of privacy concerns discussed by the Rostker court, the Court of Appeals and this Court has on occasion used pseudonyms to protect the identities of both parties. See e.g. B.N. v. K.K., 312 Md. 135, 538 A.2d 1175 (1988) (tort action by woman against man for infecting her with a sexually transmitted disease that he knew, at the time of sexual activity, was contagious);4 S.F. v. M.D., 132 Md.App. 99, 751 A.2d 9 (2000) (visitation dispute between former same-sex partners over young daughter suffering from psychological problems), overruled by Janice M. v. Margaret K., 404 Md. 661, 948 A.2d 73 (2008) (holding that Maryland does not recognize de facto parenthood). See also Karen v. Christopher, 163 Md.App. 250, 878 A.2d 646 (2005) (custody dispute between parents where paternity of child of marriage was at issue).

Some federal circuit courts of appeal have addressed the question when, and under what standard, a court should conceal a defendant’s identity in a criminal case. United States v. Doe, 655 F.2d 920 (9th Cir.1980), is frequently cited in this regard. In that case, the defendant and a friend were charged with possession with intent to distribute heroin and simple possession. During the pendency of the charges against him, the defendant cooperated with the DEA in a heroin trafficking investigation that was aborted when it became too dangerous. At trial, the defendant took the stand and testified that the heroin belonged to him, not to his friend. At sentencing, he argued that his cooperation with the DEA and his testimony taking responsibility for ownership of the heroin was part of a plea agreement that the government then reneged on. The federal district court rejected that argument. On appeal, the Ninth Circuit likewise rejected the *757argument, saying there was no evidence of a plea agreement and that the defendant apparently had cooperated with the DEA and inculpated himself in an attempt to “make the best of a bad situation.” 655 F.2d at 925.

Before the Ninth Circuit issued its opinion, the defendant asked that a pseudonym be used instead of his name. The Ninth Circuit converted its opinion into a memorandum, but the Government then asked that the opinion be published, and joined in the request that the defendant’s name be replaced with a pseudonym. In deciding whether to do so, the court considered other cases, none precisely on point, that implicated privacy rights of adults or the interest in protecting juveniles from public exposure. Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961)(contraception rights); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973) (abortion rights); and United States v. Doe, 556 F.2d 391 (6th Cir.1977), United States v. Indian Boy X, 565 F.2d 585 (9th Cir.1977), and Doe v. Deschamps, 64 F.R.D. 652 (D.Mont.1974) (all involving parties who were juveniles).

The Ninth Circuit noted that the defendant/appellant had cooperated with the DEA and then had given testimony in court that was favorable to the government. It further observed that, in a related habeas corpus case involving the same defendant/appellant, the record had been sealed at the urging of all parties and upon a finding by the court that the defendant/appellant faced a risk of bodily harm from other inmates during the long prison term that had been imposed. The Ninth Circuit went on to state:

We recognize that the identity of the parties in any action, civil or criminal, should not be concealed except in an unusual case, where there is a need for the cloak of anonymity. Where it is necessary, however, to protect a person from harassment, injury, ridicule or personal embarrassment, courts have permitted the use of pseudonyms [referring to the cases cited above]. While these cases are factually distinguishable, we conclude that an “unusual” case is presented____The use of pseudonyms may prevent the *758dissemination of information within the prison with respect to the [defendantj/appellant’s cooperation with the Government.

655 F.2d at 922 n. 1. See also James v. Jacobson, 6 F.3d 233, 242 (4th Cir.1993) (observing that “[fjederal courts traditionally have recognized that in some cases the general presumption of open trials—including identification of parties and witnesses by their real names—should yield in deference to sufficiently pressing needs for party or witness anonymity.”); Doe v. Evans, 202 F.R.D. 173, 175 (E.D.Pa.2001) (stating that federal courts in the Third Circuit have held that, “[i]n determining whether a party may proceed under a pseudonym, the public’s right of access should prevail unless the party requesting pseudonymity demonstrates that her interests in privacy or security justify pseudonymity.”).

By contrast, the Ninth Circuit decided against using a pseudonym in United States v. Stoterau, 524 F.3d 988 (9th Cir.2008). There, the defendant pleaded guilty to transporting child pornography by uploading obscene pictures of young boys onto an internet website. On appeal, he challenged several aspects of his sentence. He requested that the court use a pseudonym in its opinion, arguing that his was an “unusual case” in which anonymity was needed “because sex offenders such as [he] face an elevated risk of violent abuse in prison.” Id. at 1012. Commenting that the claimed need for anonymity in a given case must be balanced “‘against the general presumption that parties’ identities are public information,’ ” id. (quoting Does I thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1069 (9th Cir.2000)); the court rejected the request. It disagreed with the notion that “ ‘mere membership in a class of offenders that may be targeted by other inmates’ ” makes a case sufficiently unusual to warrant the use of a pseudonym in the court’s opinion. Id. at 1013 (quoting United States v. Kapitzke, 130 F.3d 820, 822 (8th Cir.1997)). The court reasoned:

Inmates may face a heightened risk of abuse in prison for a range of reasons, (for example, membership in a gang, *759membership in an ethnic group, or sexual orientation), and it is prison officials who have the primary responsibility to “take reasonable measures to guarantee the safety of the inmates” and to “protect prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 832-38, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotation marks omitted). If the nature of Stoterau’s offense alone could qualify him for the use of a pseudonym, there would be no principled basis for denying pseudonymity to any defendant convicted of a similar sex offense. Such a significant broadening of the circumstances in which we have permitted pseudonymity is contrary to our long-established policy of upholding “the public’s common law right of access to judicial proceedings,” Does I thru XXIII, 214 F.3d at 1067, and contrary to our requirement that pseudonymity be limited to the “unusual case.” [United States v.] Doe II, 488 F.3d [1154,] [] 1156 n. 1 [ (2007) ].

524 F.3d at 1013. The court further reasoned that for practical considerations, and keeping in mind the importance of the public’s right of access to the courts, the interest in favor of open judicial proceedings outweighed Stoterau’s interest in anonymity. The court noted that Stoterau had

not shown that his need for anonymity outweighs “the public’s interest in knowing the party’s identity. We question the value that pseudonymity would have for Stoterau at this point. Stoterau’s conviction is a matter of public record, and many of the documents in his case were not submitted under seal. Therefore, the use of a pseudonym in this disposition will have limited effect in concealing the fact that Stoterau was convicted of transporting child pornography. On the other hand, “[identifying the parties to the proceeding is an important dimension of publicness. The public has a right to know who is using their courts.” Doe v. Blue Cross & Blue Shield United of Wis., 112 F.3d 869, 872 (7th Cir.1997). Under these circumstances, the interest “weighing in favor of open judicial proceedings” *760outweighs the low value of pseudonymity at this point in Stoterau’s proceedings. Does I thru XII, 214 F.3d at 1069.

Id. at 1013-14.

In my view, the case at bar is not an unusual one in which a compelling interest in concealing the appellant’s identity outweighs the constitutional, common law, and Maryland Rule-based right of public access to all information about this criminal matter, including the appellant’s name.5 Unlike the Ninth Circuit Doe case discussed above, the appellant did not assist the State by way of testimony; indeed, the conduct the State was generous enough to give him credit for under the plea agreement hardly amounted to serious cooperation. Also, unlike the Doe case, there was no finding by the court below or any court in a related case that the appellant faces a serious risk of personal injury in prison if his name is not concealed in this opinion. The appellant made no argument in his “Motion for Appropriate Relief’ as to why, on this record, it is likely that he will be subjected to personal harm in prison. In fact, given that his motion assumed that he would not be in prison at all, it appears that the appellant does not see his personal safety situation as differing depending upon whether he is in or out of prison.

In addition, to the extent that there was some cooperation by the appellant, nothing in the record of this case gives the specifics of that cooperation. The most specific information is *761the identity of certain police officers—which is not specific at all, given that they routinely are involved in criminal matters. Of the two PCP sellers, one is dead and the other is not revealed in the record. The appellant did not testify against the seller who is still alive and there is nothing in the record that shows that that person would have known that his arrest was tied to the appellant or to a plea deal.

To the extent the appellant’s request for anonymity in this opinion is based on a general concern that anyone who is revealed as having acted as an informant will be in danger of physical harm from members of the prison population generally (and again, the appellant has not even made such an argument), this case is more like the Ninth Circuit’s Stoterau case than its Doe case. The Department of Public Safety and Correctional Services (“DPSCS”) is charged with safeguarding prisoners who, because of their status, may be subject to attack by other inmates: child molesters, gang members, and minorities. Likewise, it is the duty of DPSCS to safeguard prisoners thought by other inmates to be “snitches.”

Another very significant distinction between this case and the Ninth Circuit’s Doe case is that the situation the appellant finds himself in—becoming a member of the prison population for more than one day—was brought upon himself by virtue of his not cooperating with the State as he had promised to do. The government has an interest in having people who are part of the criminal element cooperate, as obtaining convictions, especially in drug cases, otherwise can be difficult. In this case, the State’s interest in that regard was not fulfilled, nor will there be future conduct by the appellant to advance that interest. The appellant did not cooperate as he had agreed to, and will go to prison only because of his failure to cooperate. The plea agreement between the appellant and the State did not contain a promise of confidentiality. To the extent that such a promise could have been inferred, however, it no longer reasonably can be inferred given that the appellant has breached the plea agreement.

*762In the absence of any specific evidence or even an allegation that the appellant is likely to be subjected to physical harm in prison, and given that the appellant did not abide by the terms of the plea agreement and only will become an inmate for that reason, there is not a countervailing important interest in the appellant’s safety that outweighs the right of access to all information about this case, including the appellant’s identity. Accordingly, this Court is without a sufficient basis to exercise its discretion to conceal the appellant’s identity in the opinion in this case. Therefore, I cannot join in the opinion to the extent that the appellant’s name is not revealed.

. Rule 1-301, which applies generally to all court proceedings in Maryland and is entitled “Form of court papers,” provides, as relevant: (a) Caption and titling. Every pleading and paper filed shall contain a caption setting forth (1) the parties or, where appropriate, the matter, (2) the name of the court, (3) the assigned docket reference, and (4) a brief descriptive title of the pleading or paper which indicates its nature. An opinion of an appellate court is a "paper” that is filed in the case.

Rule 4-202, entitled "Charging Document-Content” states at subsection (a) that the charging document shall contain the name of the defendant.

In the appellate courts, there are several types of cases in which confidentiality is required in opinions, published or not, in certain appeals. Rule 8-121, entitled "Appeals from courts exercising juvenile jurisdiction-Confidentiality,” states that, in an appeal from an order entered by a juvenile court that concerns a child, "Unless the court orders otherwise, the proceedings shall be styled 'In re ... (first name and initial of last name of the child).’ ” Md. Rule 8-121(b). Subsection (c) of that rule goes on to provide that "the last name of the child shall not be used in any opinion, oral argument, brief, record extract, petition, or other document pertaining to the appeal that is generally available to the public,” Subsection (d) of that rule provides that the record shall be transmitted in a way to ensure the "secrecy of its contents” and subsection (e) states that, "[ejxcept by order of the Court, the record shall be open to inspection only by the Court, authorized personnel, parties, and their attorneys.”

Rule 8-122, which pertains to appeals from proceedings for adoption or guardianship, likewise requires that the proceeding be styled so as to use only the first name and last initial of the child, see subsection (b), and further states, at subsection (c), that "the last name of the child, the natural parents of the child, and the adopting parents of the child shall not be used in any opinion, oral argument, brief, record extract, petition, or other document pertaining to the appeal that is generally available to the public.” It further provides that the parties may waive the requirements of the section, with the approval of the Court. It also contains provisions ensuring secrecy of the contents of the record upon *751transmission and limiting the people who may have access to the record for inspection.

Finally, Rule 8-123, which governs appeals from criminal investigations, provides at subsection (b) that in an appeal from an order entered in a criminal investigation the caption shall be styled "In Re Criminal Investigation No ... in the Circuit Court for ...” and at subsection (c) that "[t]he name of the person under investigation shall not be used in any opinion, oral argument, brief, record extract, petition, or other document pertaining to the appeal that is generally available to the public.” Like the previous two sections, this section requires protection of the secrecy of the record in transmission on appeal and limitation of those who may have access to the record.

. The appellant testified that he identified a third target but attempts to carry out a controlled buy were thwarted by the police. The court did not credit that testimony, however.

. For example, in his second petition for bail, the appellant observed that his first petition had been denied, "which seemed to indicate the issuance of an opinion could be expected soon” and that "[t]he passage of time, sans opinion, has prompted Appellant to remind this Honorable Court that Appellant appears likely to triumph in this appeal (Emphasis added.)

. The B.N. v. K.K. case was a certified question from the federal district court for Maryland. It appears that the pseudonyms for the parties were adopted by the federal court.

. The Maryland court rules that govern access to court records, including access to case records, declare as a general policy a "presumption of openness.” Rule 16-1002 states at subsection (a):

Presumption of openness. Court records maintained by a court or by another judicial agency are presumed to be open to the public for inspection. Except as otherwise provided or pursuant to the Rules in this Chapter, the custodian of a court record shall permit a person, upon personal appearance in the office of the custodian during normal business hours, to inspect the record.

Under Rule 16-1001(e)(3), a "court record” includes a "case record," which ordinarily means "a document, information, or other thing that is collected, received, or maintained by a court in connection with one or many specific judicial actions or proceedings.” Md. Rule 16-1001(c)(A). The name of a party to a case is "information” that is maintained by a court in connection with a case.