Argued: October 11, 2017
Circuit Court for Baltimore City Case Nos.: 114069007,
114069008 114069009, 114069010
Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten,
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
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.
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
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.
that it was error to give the missing witness instruction in
this case and, for that reason, reverse Mr. Harris'
Home Invasion and Robbery
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" were also present. Several pill bottles
for Ms. Binko's prescriptions and some cash lay on the
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.
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.
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.
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 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."
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
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.
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 of Mr. Harris
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
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
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
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.
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.
Defense Counsel: That juries don't like when people
refuse to talk to the police.
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.
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.
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.
of the Homes of Mr. Harris' Wife and of his Mother
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 - 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.
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.
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. 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
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.
Harris did not call Ms. Fallin to testify at the trial; nor
did the State call her as a rebuttal witness.
the defense rested, the Circuit Court met with counsel to
discuss the jury instructions. As had been earlier suggested
by the Circuit Court,  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. Defense counsel ultimately withdrew his
request for that instruction.
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
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.
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.
Instructions and Closing Argument
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 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
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
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
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
Harris appealed. In an unreported opinion, the Court of
Special Appeals affirmed the convictions. 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.
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.
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.
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
Missing Witness Rule
Genesis of the Missing Witness Rule
technically not a rule, the concept known as the
"missing witness rule"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.
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). 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. 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.
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.
Missing Witness Instruction in a Criminal
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
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 ...