JERRY HARRIS v. STATE OF MARYLAND
Court of Appeals of Maryland, McDonald, April 12, 2018,
Missing Witness – The Missing Witness instruction “should rarely – if ever” be given against a Defendant in a criminal case

(Concur and Dissent – Adkins – A mother is “peculiarly available” to her son, but reversible error in a close case where primary mentioned that the defendant requested an attorney)


I don’t agree with this decision, but I don’t hate it. I’d have preferred a limitation on “peculiarly available” such that “peculiarly available” is limited to circumstances where one party has access and the other is unable to summons a witness because they don’t have a name/address.
That being said, it IS an interesting opinion and contains the quote:

as well as acknowledging the not infrequent issue of “this Court had dodged the constitutional issue that the intermediate appellate court had teed up”

Facts:
In 2014, two masked men forced their way into a Baltimore City apartment and robbed those inside. One of the men had a gun.
During the home invasion, one of the masked men (the one without the gun) picked up several pill bottles to check their contents and then set them back down.
While the victims could not positively identify the robbers, Crime Lab recovered fingerprints from two of the bottles.
A BPD latent print examiner analyzed the prints and found that they matched prints on file for Jerry Harris.
A BPD detective followed up with the victims and they testified that they did not know Harris and that there was no reason for Harris’ fingerprints to be on the victim’s prescription bottle.
Pursuant to his investigation, the detective then obtained an arrest warrant for Harris.
Once Harris was arrested, the detective attempted to interview him. While Harris was being interviewed, he said that he lived at a particular address with his wife. While Harris was being read his Miranda rights, he asked whether he was being charged with armed robbery. When the detective said that he was, Harris invoked his right to an attorney.
The detective obtained a search warrant for the address given by Harris, but when he executed the warrant he found that Harris no longer lived there. The woman who lived there said that Harris was living with his mother and gave the mother’s address.
The detective traveled to the mother’s house and obtained consent to search, but the mother stated that she kicked Harris out of the house a “couple weeks” earlier. Harris had some belongings there, but no evidence was recovered.
At the beginning of the trial, the defense attorney told the jury that Ms. Fallin would testify that Mr. Harris was at her house the entire night on the date of the robbery and therefore could not have been the robber.
During its case, the State called the detective to testify about the investigation. When it came to the Harris interview, the detective testified that “Mr. Harris provided us with a false address, denied any involvement with the robbery, and then I believe he requested an attorney.”
During the defense case, Harris did not call his mother to the stand. Instead, Harris testified that he was with his mother at the time of the robbery and also that his left hand was so injured that he wouldn’t be able to pick up a pill bottle.
Because Harris did not call his mother to the stand, the State requested that the trial court read the jury a “Missing Witness” instruction. The trial judge did so, over Harris’ objection, instructing the jury that “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 absence 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.”
The jury convicted Harris of assault and robbery charges, but acquitted on the armed robbery charges.
Harris appealed, arguing that the trial court should not have given the “missing witness” instruction and that it was improper for the trial court to allow the detective to testify that Harris invoked his right to an attorney.

Held: The Court of Appeals agreed with Harris. A “missing witness” instruction improperly shifts the burden of proof to the defendant and should not be given in favor of the State.

Missing Witness Rule – A judge/jury can infer that if a relevant witness “peculiarly available” to one side wasn’t called by that side, it was because she would have testified contrary to that side’s interest

Missing Witness Rule – Jury Instruction – The Court cannot generally instruct the jury that they may hold a defendant’s failure to call a witness against the defendant.

From the Case: “We do not rule out the possibility that there may be the rare criminal case in which a missing witness instruction adverse to a defendant may be appropriate, although it is difficult to foresee what those circumstances might be. Such an instruction should rarely, if ever, be given”

From the Case: “The State, not Mr. Harris, bore the burden of proof in this case, and Mr. Harris was not obligated (even if it might have bolstered his defense) to corroborate independently his sworn testimony about his whereabouts… There is no dispute that the State was entitled in closing to note [the mother’s] absence or to question the veracity of Mr. Harris’s testimony, and that the jury would be entitled to disbelieve him. But it is another thing altogether to have the court instruct the jury, as it did here, that [the mother’s] absence from the witness stand permits the jury to infer that the testimony would have been unfavorable” to Harris.

Missing Witness Rule – For the Missing Witness Rule to apply, there must be:
– a witness
– peculiarly available to one side because of a relationship of interest or affection
– whose testimony is important
– who is not called to testify

Missing Witness Rule – When to Raise the Issue – A party seeking a “Missing Witness Rule” instruction should raise the issue when the other side could still call the witness.

Missing Witness Rule – If the Issue is Raised – The opposing party should then “be given an opportunity to call the missing witness or to demonstrate to the court by argument or proof the reason for the failure to call the witness.”

Missing Witness Rule – “Peculiarly available” – A mother is not automatically “peculiarly available” to her child and so failure of a defendant to call his mother to back him does not automatically allow the Missing Witness Rule

Missing Witness Rule – “Peculiarly available” – A judge must consider facts beyond simply family relationship in deciding whether a witness is “peculiarly available” to the defendant

Jury Instruction – While a trial court may decline to give a jury instruction based on information not available to the jury, it should not generally give an instruction based on information that the jury could not rely on in following that instruction

Missing Witness Rule – Argument – In some cases the State can argue that the defendant’s failure to call a witness shows that the witness would have testified against the defendant.

From the Case: In his opening statement in this case, defense counsel had told that jury that he would present an alibi through the testimony of Harris’ mother. When the defense substituted the defendant as its witness on his whereabouts, it was fair game for the prosecutor to point out that the defense had not presented the evidence from Ms. Fallin that it had promised. “However, it is not fair game for the trial court to do so.”

Testimony – Post-Arrest Silence – In a jury trial, an officer cannot generally testify about a defendant’s request for an attorney or otherwise invoking his Miranda rights.

From the Case: “It was an error to allow [the detective] to testify that Mr. Harris had requested counsel during a custodial interview.”