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Harris v. State

Court of Appeals of Maryland

April 12, 2018

JERRY HARRIS
v.
STATE OF MARYLAND

          Argued: October 11, 2017

          Circuit Court for Baltimore City Case Nos.: 114069007, 114069008 114069009, 114069010

          Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

          OPINION

          McDonald, J.

         In a criminal trial, the prosecutor asks the jury to draw various inferences from the evidence adverse to the defendant - the ultimate adverse inference being that the defendant is guilty as charged. In certain limited circumstances, one such adverse inference may be that the defendant's failure to call a witness peculiarly in the control of the defendant indicates that the witness would have testified unfavorably to the defendant. This is sometimes called the "missing witness rule."

         There is a related pattern jury instruction sometimes used by trial courts in Maryland known as the missing witness instruction. In that instruction, the trial court instructs the jury that, if a witness likely could have given important evidence in the case and it was peculiarly within the power of one party to produce that witness but the witness was not called and the individual's absence was not adequately explained, the jury may infer that the witness would have testified unfavorably to that party.

         In a criminal prosecution, the State bears the burden of proof beyond a reasonable doubt on all elements of the crimes charged and a defendant has no obligation to testify, to call witnesses, or to produce evidence. When a trial court gives a missing witness instruction at the behest of the prosecution against the defendant, the court essentially endorses the particular inference that the prosecutor asks the jury to draw against the defendant. In our system of justice, this should rarely - if ever - be done, as it may be at odds with the constitutional principles that govern a criminal case. Even in the limited circumstances in which a prosecutor may legitimately urge the jury to draw an inference adverse to the defendant under the missing witness rule, there is no need for the court to endorse that element of the prosecutor's argument.

         In this case, Petitioner Jerry Harris was charged with various offenses arising out a home invasion and robbery at an apartment in Baltimore City. None of the victims of the crime identified Mr. Harris as a participant in the robbery; the only evidence linking him to the crime was a latent fingerprint examination that matched prints found on pill bottles at the apartment to prints on file for his left hand, which had previously been disabled in an industrial accident. Mr. Harris testified that he had been at his mother's home on the night of the robbery, but his mother did not testify. At the suggestion of the trial court, the prosecutor requested a missing witness instruction that advised the jury that it could infer from the mother's absence that she would have testified unfavorably to Mr. Harris. The trial court gave that instruction and, after a lengthy deliberation, the jury convicted Mr. Harris of some of the charges related to the robbery and acquitted him of others.

         We hold that it was error to give the missing witness instruction in this case and, for that reason, reverse Mr. Harris' convictions.

         I

         Background

         The Home Invasion and Robbery

         On the evening of January 16, 2014, Gale Binko and Alease Holmes were playing cards at the kitchen table in Ms. Binko's Baltimore City apartment. Lester Allen, who also lived in the apartment, and a woman known only as "Reds"[1] were also present. Several pill bottles for Ms. Binko's prescriptions[2] and some cash lay on the table.

         Around 9:00 p.m., Reds decided to leave the apartment. At Ms. Binko's request, Mr. Allen accompanied Reds to the door. When they opened the front door, they were confronted by two masked men, one of whom had a gun. Back in the kitchen, Ms. Binko heard some unfamiliar voices interspersed with Mr. Allen's voice. She heard Reds say "[T]hey got a gun." Reds and Mr. Allen then returned to the kitchen accompanied by the two masked men. The man with the gun was holding it to Mr. Allen's head.

         The second masked man, who was called "Black" by the masked man with the gun, grabbed approximately $350 from the kitchen table in front of Ms. Binko. Black then opened Ms. Binko's blouse, groped her, and pulled out a bottle of Oxycodone pills that was concealed in her blouse.

         The masked man holding the gun to Mr. Allen's head then directed Black to check Ms. Binko's socks. Black removed Ms. Binko's shoes, but Ms. Binko began to fight back. At one point during the struggle, Black's mask came off, giving Ms. Binko a glimpse of his face. She described him as a tall, stout, black man with a dark complexion and a mustache. She was not sure whether he had a beard. Ms. Binko testified that Black used both of his hands when he searched her blouse, pulled off her shoes, and struggled with her.

         While Ms. Binko was engaged with the two intruders, Ms. Holmes and Reds fled through a back door. After subduing Ms. Binko, Black picked up and examined each of the three pill bottles on the kitchen table. Then he and the man with the gun left the apartment through the back door.

         The Investigation

         After the robbers left, Ms. Binko called 9-1-1. The police responded to the apartment within five minutes. Ms. Holmes returned to the apartment shortly thereafter, although Reds did not. Detective Franklin Gaskins interviewed Ms. Binko, Ms. Holmes, and Mr. Allen. The police were never able to locate or identify Reds. Ms. Binko was unable to make an identification of the robbers because, she later testified, she was "upset and afraid."

         Detective Gaskins summoned the crime lab to the apartment. A crime lab technician lifted two prints from a large prescription bottle and one from a small prescription bottle on the kitchen table. A latent print examiner at the Police Department lab later analyzed the lifted prints. The examiner determined that the three prints matched impressions on file of Mr. Harris' left thumb, index finger, and middle finger.[3]

         Detective Gaskins then took a photograph of Mr. Harris to Ms. Binko's home to display to Ms. Binko. She told the detective that she did not know Mr. Harris, that he had not been to her home, and that there was no reason for him to have handled her pill bottles. Neither Ms. Holmes nor Mr. Allen, who also testified at trial, identified Mr. Harris as one of the robbers.

         Based on the fingerprint identification, Detective Gaskins obtained an arrest warrant for Mr. Harris. Following Mr. Harris' arrest in February 2014, Detective Gaskins attempted to interview him.

         Police Interview of Mr. Harris

         At trial, the prosecutor asked Detective Gaskins about his attempt to interview Mr. Harris following his arrest. The prosecutor asked the detective what occurred during that interview, defense counsel objected, and the following bench conference ensued:

Court: There's nothing wrong with the question. I don't know what the answer is going to be. Meaning, if his answer is, he said, then we could get into this. It could be, I observed him crying. And then that's fine. Do you know what I mean? So I don't know where this is going.
Defense Counsel: Well, what actually occurred was that he started to sign a waiver of rights form, and then asked them if he was being charged with armed robbery. And they said yes. And he says, well, I'm not talking, you know, I want to talk to my lawyer. And he refused to sign the rest of the statement.
So I think that he has a fifth amendment privilege not to incriminate himself and that, you know, his refusal to talk to police shouldn't be admissible as proof of guilt.
Court: I don't know if the problem is his refusal to talk to police. I think the problem for him more is the fact that he knew what he was being charged with before they charged him. I mean, if you're an innocent man and you're brought in, how would you have said, are you charging me with armed robbery? I mean, how would you pick that out of the air?
Defense Counsel: I don't know. Maybe they told him or something. Maybe that's what he heard, because they had already executed a search warrant at his estranged wife's house, and they had already executed a search warrant at his mother's house where he lived.
Court: Okay.
Defense Counsel: So obviously they had to leave copies of both search warrants there.
Court: Okay. Okay. Fair enough. And why do you think that his refusal to speak to the police is indication of his guilt? Why do you think they would take it that way?
Defense Counsel: Because it's been my experience.
Court: That?
Defense Counsel: That juries don't like when people refuse to talk to the police.
Court: [Prosecutor]?
Prosecutor: Innocent people refuse to talk to the police too. The jury has already been given the instruction as far as, you know, (inaudible).
Court: I think it's factual. He didn't want to talk. It's not hearsay. I don't think it's highly prejudicial. And I think that you could definitely rehabilitate it, you know, into any level of prejudice that you think it might cause. The objection's overruled.

         After counsel returned to the trial tables, the court advised the detective that he could answer the question and the detective provided the following response:

Detective Gaskins: Mr. Harris provided us with a false address, denied any involvement with the robbery, and then I believe he requested an attorney.[4]

         The prosecutor then moved on to another topic. Defense counsel did not cross-examine the detective concerning the interview. Mr. Harris' invocation of his right to counsel during the police interview was not mentioned in either testimony or argument during the remainder of the trial.

         Searches of the Homes of Mr. Harris' Wife and of his Mother

         Detective Gaskins obtained a search warrant for the address that Mr. Harris provided during his police interview. The address turned out to be not a false address, but rather a former address. The woman who lived there - and whom Mr. Harris later identified as his wife[5] - told the police that Mr. Harris had not stayed there for some time and gave them the address of Mr. Harris' mother, Barbara Fallin, where she believed that Mr. Harris had been staying. When the police went to Ms. Fallin's address, Ms. Fallin consented to a search of the portion of the house where Mr. Harris kept belongings, but said that she had not seen him for a couple weeks, as she had asked him to leave the house. According to Detective Gaskins, no evidence was recovered in the search of either location.

         The Defense Case

         In his opening statement, defense counsel indicated that he was planning to call Ms. Fallin as an alibi witness on Mr. Harris' behalf. Defense counsel told the jury that Ms. Fallin would testify that Mr. Harris was at her house the entire night on the date of the robbery.

         After the State rested its case, Mr. Harris, rather than Ms. Fallin, testified in his defense. Mr. Harris testified that his left arm had been amputated "mid-arm" as a result of a work accident in 2004.[6] Doctors were able to re-attach the arm, and he underwent multiple surgeries and physical therapy. Mr. Harris explained that he had regained feeling in his hand, but he was not able to grasp items or use his hand in the same manner as before the accident. Mr. Harris testified that he was right-handed, and that he had adapted to performing daily activities with one hand. He said that he had to use his right hand to put items in his left hand.

         Mr. Harris testified that in late 2013 he had separated from his wife and moved in with his mother, where he was still living on January 16, 2014 - the day of the robbery at Ms. Binko's apartment. Mr. Harris said that he did not know Ms. Binko, Ms. Holmes, Mr. Allen, or Reds. He denied robbing Ms. Binko or participating in a home invasion of her apartment. Mr. Harris said that he spent that day at his mother's house, that she was home with him the whole day, and that no one else was with them at the time of the robbery. Mr. Harris denied that he had given Detective Gaskins a false address when he told him the address where he had lived with his wife.

         Mr. Harris did not call Ms. Fallin to testify at the trial; nor did the State call her as a rebuttal witness.[7]

         Jury Instruction Conference

         After the defense rested, the Circuit Court met with counsel to discuss the jury instructions. As had been earlier suggested by the Circuit Court, [8] defense counsel had requested a missing witness instruction related to the State's failure to call Reds as a witness. The Circuit Court then suggested that the State would also seek its own missing witness instruction with respect to the failure of the defendant to call Ms. Fallin as a witness. The State opposed a missing witness instruction as to Reds, arguing that nobody had been able to locate or identify her and thus she was equally unavailable to both parties.[9] Defense counsel ultimately withdrew his request for that instruction.

         The State then adopted the Circuit Court's suggestion and requested a missing witness instruction relating to the absence of Ms. Fallin. Defense counsel objected, arguing that the State had never requested a subpoena for Ms. Fallin and that there were reasons for her absence that were not relevant to the trial. The following colloquy took place:

Court: Okay. Okay. If a witness could have given important testimony in issue with this case-and I imagine an alibi would be considered important testimony-and if the witness was peculiarly in the power of the defendant to produce-which she was, it's his mother-but was not called as a witness by the defendant, and the absence of that witness was not sufficiently accounted for or explained-which it was not-then you may decide that-I mean, how is this not applicable?
Defense Counsel: Because it's not peculiarly within his power. He's in jail. He doesn't have the power to do anything.
Court: Right. You are acting as his agent, [defense counsel].
Defense Counsel: True.
Court: Okay. So you had the ability to either bring her here or subpoena her here as an alibi witness. The objection is overruled. [Criminal Pattern Jury Instruction] 3.29 missing witness instruction is being read.

         Defense counsel then argued that the instruction improperly shifted the burden of proof to the defendant to produce evidence. The Circuit Court agreed that the instruction would be improper if Mr. Harris had chosen not to testify himself, but reasoned that, because he had testified, the jury could consider his failure to call Ms. Fallin as a witness in assessing the credibility of his own testimony.

         Jury Instructions and Closing Argument

         Consistent with its ruling during the jury instruction conference, when the Circuit Court instructed the jury on the law, it included the following missing witness instruction:

You have heard testimony about Barbara Fallin, who was not called as a witness in this case. If a witness could have given important testimony on an issue in this case, and the witness was peculiarly within the power of the defendant to produce but was not called as a witness by the defendant, and the action[10] of that witness was not sufficiently accounted for or explained, then you may decide that the testimony of that witness would have been unfavorable to the defendant.

         During the State's closing argument, the prosecutor referred to Ms. Fallin's absence and urged the jury to draw an inference adverse to Mr. Harris. The prosecutor reminded the jury that defense counsel had identified her as an alibi witness in opening statement, but had not called her during the defense case and asked rhetorically "Where is his mother?" The prosecutor returned to that theme later in his argument, asking: "Who can attest to the defendant's whereabouts, other than the defendant?" In response, defense counsel acknowledged Ms. Fallin's absence, but contended that the jury should not draw an adverse inference against Mr. Harris because a "person not testifying is non-evidence." In the State's rebuttal argument, the prosecutor twice returned to the absence of Ms. Fallin. He reiterated his question "Where is his mother?" and also reminded the jurors that "[t]he judge has instructed you … that … you can draw a reasonable inference to the fact that her testimony would have possibly been unfavorable to this defendant."

         Neither the prosecutor nor defense counsel referred in their arguments to Detective Gaskins' testimony that Mr. Harris had invoked his right to an attorney during his police interview.

         Verdict and Appeal

         The jury found Mr. Harris guilty of second degree assault against Mr. Allen; and conspiracy to commit robbery with a dangerous weapon, robbery, conspiracy to commit robbery, conspiracy to commit first-degree assault, second-degree assault, conspiracy to commit second-degree assault, theft less than $1, 000, and conspiracy to commit theft less than $1, 000, all against Ms. Binko. The jury acquitted him of six assault charges, robbery with a dangerous weapon, and use of a firearm in the commission of a felony or crime of violence. The Circuit Court later sentenced Mr. Harris to an aggregate 10-year sentence.

         Mr. Harris appealed. In an unreported opinion, the Court of Special Appeals affirmed the convictions.[11] Harris v. State, No. 484, 2017 WL 168446 (Md. Ct. Spec. App. Jan. 17, 2017) (unreported). The intermediate appellate court held that the Circuit Court erred when it permitted Detective Gaskins to testify that Mr. Harris had requested an attorney. But the court concluded that, in light of the fingerprint evidence linking Mr. Harris to the crime, the error was harmless beyond a reasonable because it was a "brief remark, " and there had been no further reference to it in testimony or argument during the remainder of the trial. Id. at *5.

         The Court of Special Appeals also found that the trial court did not abuse its discretion when it gave the missing witness instruction. It reasoned that there was a sufficient factual basis to support the conclusion that Ms. Fallin's relationship with Mr. Harris rendered her testimony unavailable to the State as a practical matter and peculiarly within Mr. Harris' control. Thus, his failure to call her as a witness would support an inference that her testimony would be unfavorable to him. Id. at *11-12. Judge Nazarian dissented from that holding. He would have held that the Circuit Court abused its discretion when it gave the missing witness instruction and that, together with the erroneous admission of testimony concerning Mr. Harris' invocation of his right to counsel, that error required reversal of the conviction. Id. at *15.

         We granted certiorari to consider the following issues:

(1) Whether the Circuit Court abused its discretion when it gave a missing witness instruction advising the jury that it could draw an inference adverse to Mr. Harris based on his failure to call his mother as a witness.
(2) Whether it was a harmless error when the Circuit Court permitted Detective Gaskins to testify that Mr. Harris had invoked his right to counsel during a custodial interview.

         For the reasons set forth below, we hold that the Circuit Court should not have given the missing witness instruction under the circumstances of this case. Because we reverse Mr. Harris' convictions for that reason, and remand the case for a new trial, we need not address whether the erroneous reference to his invocation of his right to counsel was harmless.

         II

         The Missing Witness Rule

         A. Genesis of the Missing Witness Rule

         Although technically not a rule, the concept known as the "missing witness rule"[12]refers to the permissible inference that a factfinder may draw from the absence of a potential witness who might have knowledge of facts at issue in the case. If the factfinder determines that the witness is "peculiarly available" to one party, the absence of the witness is ascribed to that party. The factfinder is then permitted to infer that the party did not call the witness because whatever testimony that individual would have given would be unfavorable to that party.

         Although there are common law antecedents for the doctrine, the current understanding of the missing witness rule is often traced to a Supreme Court case from the late nineteenth century. Graves v. United States, 150 U.S. 118 (1893).[13] That case concerned the propriety of a prosecutor's closing argument to the jury in a criminal case. In that argument, the prosecutor suggested that the absence of the defendant's wife from the trial undermined his alibi defense to a murder charge, although other witnesses had testified in support of the alibi. The Court summarized succinctly the missing witness rule:

The rule, even in criminal cases, is that, if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.

150 U.S. at 121.[14] While the Supreme Court referred to the missing witness rule as a "presumption" in Graves, most courts have treated it as a permissible inference rather than a presumption.[15]

         In the years since the Graves decision, developments in constitutional law, changes in the rules of evidence and discovery, and questions concerning the accuracy of the adverse inference promoted by the missing witness rule have seriously weakened its viability - at least in the context of criminal case in which the inference is to be taken against the defendant. In addition, courts have expressed concerns when the missing witness rule appears not only in a party's argument, but is also endorsed in a court's jury instruction. In this case we are primarily concerned with the missing witness rule as it appears in a jury instruction given by the trial court.

         B. Missing Witness Instruction in a Criminal Case

         A trial court's jury instructions in a criminal case serve a number of purposes. They provide the jury with general guidelines on how to carry out its duties as factfinder (e.g., burden of proof, presumption of innocence, what is and is not evidence). They outline the law concerning the particular charges in the case and what elements must be proven for the jury to reach a guilty verdict. They may, as appropriate, provide guidance to the jury on how to evaluate particular types of evidence or testimony (e.g., expert testimony, impeachment evidence, other crimes evidence).

         A missing witness instruction calls the jury's attention to the absence of evidence (i.e., the imagined testimony of the missing witness), allows the jury to attribute that absence to one of the parties, and permits the jury to draw a negative inference against that party for failing to produce that evidence. A missing witness instruction adverse to a defendant is a rare instance where the trial court endorses an evidentiary inference promoted by the prosecution - an inference based not on evidence or the conduct of the defendant, but on the failure of the defendant to produce evidence. Of course, the jury has little or no basis for assessing the credibility of the imagined testimony of the absent witness. In that the instruction concerns the weight to be given to potential ...


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