ON MOTION FOR RECONSIDERATION
Harrell, Battaglia, Greene, Adkins, McDonald, Watts, JJ.
The Court having considered the motion for reconsideration filed in the above-captioned case, it is this 27th day of January, 2014,
ORDERED, by the Court of Appeals of Maryland, a majority of the Court concurring, that the motion be, and it is hereby, granted, and it is further
ORDERED, that the opinion in this case filed on November 27, 2013 be, and it is hereby, recalled and a new opinion filed simultaneously with this order shall replace the opinion on November 27, 2013.
Mary Ellen Barbera Chief Judge
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 ...