Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, Watts, JJ.
In the present case, we are asked to consider whether, in light of Atkins v. State, 421 Md. 434, 26 A.3d 979 (2011) and Stabb v. State, 423 Md. 454, 31 A.3d 922 (2011), a jury instruction in which the trial judge stated:
During this trial, you've heard testimony of witnesses and may hear argument of counsel that the State did not utilize a specific investigative technique or scientific tests. You may consider these facts in deciding whether the State has met its burden of proof. You should consider all of the evidence or lack of evidence in deciding whether the defendant is guilty. However, I instruct you that there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case. Your responsibility as jurors is to determine whether the State has proven based upon the evidence, the defendant's guilt beyond a reasonable doubt.
(emphasis added) constituted reversible error when a defense counsel remarked in opening statement:
There will not be any fingerprints from any door, any piece of paper or tape, or whatever they're saying, on any weatherstripping, on the doors, no fingerprints of his. There won't be [the defendant's] DNA on anything, not on any screwdriver, not on any weatherstripping, not on any piece of tape, not on anything. Quite frankly, there's just not, there's absolutely no evidence beyond a reasonable doubt that Mr. Robinson committed these crimes.
In giving the contested instruction, the judge also noted, "what may actually have been off the record, which was our colloquy when we were preparing instructions, it's my understanding that the defense may be arguing, as good defense attorneys do, that there wasn't any scientific link of the defendant to the crime."
We granted certiorari, Robinson v. State, 430 Md. 11, 59 A.3d 506 (2013), to consider the following questions, which we have renumbered:
1. Did the trial court abuse its discretion in providing to the jury, over objection, a "scientific or investigative techniques" instruction where defense counsel merely stated in opening statement that the lack of physical evidence demonstrated the absence of proof beyond a reasonable doubt, where defense counsel never mischaracterized the law, and where the trial court gave the instruction preemptively because defense counsel "may be arguing, as good defense attorneys do, that there wasn't any scientific link of the defendant to the crime"?
2. Where a co-defendant who entered a plea of guilty testified as a defense witness at Petitioner's trial two weeks later, did the trial court err in permitting the State, in the guise of cross-examination of the co-defendant, to effectively read into the record a statement of facts proffered at the co-defendant's guilty plea hearing but never adopted by the co-defendant?
We shall hold that the trial court erred in giving the jury the "scientific or investigative techniques" instruction in this case.
In the present case, Emmanuel Ford Robinson, Petitioner, was charged in a six count indictment with various crimes related to events that occurred in Montgomery County, Maryland, on February 28, 2011. He was eventually convicted of conspiracy to commit first degree burglary.
The State's theory of the case was that Robinson "tried to break into one apartment building with another young man by the name of Roland Spence [and] was unsuccessful. He then went across Route 355 and [broke] into a second [building] . . . and then he tried to break into an apartment in that building." During his opening statement, Robinson's attorney asserted that there was no evidence of wrongdoing by his client:
[T]his is a case about speculation. You're not going to hear any witness come in and say that they saw Emmanuel Robinson attempt to pry open any door, attempt to break and enter anywhere, or break and enter into anything. . .
The evidence in this case, you'll find, is so inconsistent and so unreliable that without guessing or filling in holes, speculating – which you cannot do, and His Honor will tell you that later – you will more than likely have many more questions than answers as to what really happened on February 28th. You will have very reasonable doubts and many of them, and it only takes one. What we expect the evidence in this case to show is that Mr. Robinson is not guilty of any of the charges, that there is no evidence to show that he pried open or broke into any door.
There is no evidence that he ever attempted to pry open or break into any door. There will be no evidence to show that he ever had a screwdriver on him or any kind of tool like that. There will not be any fingerprints from any door, any piece of paper or tape, or whatever they're saying, on any weatherstripping, on the doors, no fingerprints of his. There won't be his DNA on anything, not on any screwdriver, not on any weatherstripping, not on any piece of tape, not on anything. Quite ...