Harris v. State

JERRY HARRIS v. STATE OF MARYLAND

No. 9

COURT OF APPEALS OF MARYLAND

Argued: October 11, 2017

September Term, 2017

April 12, 2018

CRIMINAL PROCEDURE - MISSING WITNESS INSTRUCTION

A legal doctrine known as the "missing witness rule" concerns an inference that might be drawn from the absence at trial of a potential witness. If the potential witness would be expected to have knowledge of information important to an issue in the case and if that witness is "peculiarly available" to one party because of a relationship of interest or affection but the witness is not called by that party to testify, the factfinder may infer that the witness would have given testimony unfavorable to that party. In argument in a jury trial, counsel may urge the jury to draw such an inference adverse to an opposing party. In a missing witness instruction, the trial court tells the jury that it may draw such an inference if it finds that the prerequisites of the missing witness rule are satisfied. However, the rationale underlying the missing witness rule is questionable and, in a criminal prosecution, the doctrine may be in conflict with constitutional principles that place the burden of proof on the prosecution and forbid comment (in a case where the defendant does not testify) on the failure of a defendant to testify. Accordingly, a missing witness instruction that invites the jury in a criminal case to draw an inference adverse to the defendant based on the defendant's failure to produce evidence should rarely, if ever, be given.

Circuit Court for Baltimore City

Case Nos.: 114069007, 114069008 114069009, 114069010

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

Opinion by McDonald, J.

Adkins, J., concurs and dissents.

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.

IBackground

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 alsolived in the apartment, and a woman known only as "Reds"¹ were also present. Several pill bottles for Ms. Binko's prescriptions² 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 usedboth 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

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