Allen v. State

• Decision Date: 27 April 2012
• Docket Number: Sept. Term, 2011.,No. 606,606
• Citation: 204 Md.App. 701,42 A.3d 708
• Parties: Shawn Donte ALLEN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

204 Md.App. 701
42 A.3d 708

Shawn Donte ALLEN
v.
STATE of Maryland.

No. 606, Sept. Term, 2011.

Court of Special Appeals of Maryland.

April 27, 2012.

[42 A.3d 709]

Erin Murphy Ehman (Silverman, Thompson, Slutkin & White, PA, on the brief) Baltimore, MD, for appellant.

Michelle W. Cole (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: EYLER, JAMES R., WRIGHT, IRMA S. RAKER (Retired, specially assigned), JJ.

EYLER, JAMES R., J.

[204 Md.App. 703]Shawn Donte Allen, appellant, was convicted by a jury in the Circuit Court for Baltimore City of possession of cocaine with intent to distribute and related charges. On appeal, appellant challenges the circuit court's instruction to the jury with respect to “anti-CSI effect” and the court's replacement of one of the jurors with an alternate. A sub issue is whether recent Court of Appeals decisions holding that, under certain circumstances, “anti CSI effect” instructions are constitutionally

[42 A.3d 710]

improper, apply to this case. We shall hold that the decisions do apply and, based on an erroneous jury instruction, reverse appellant's convictions. We shall not reach appellant's second contention.

Factual and Procedural Background

According to Baltimore City Police Detectives Craig Jester and Paul Geare, on July 23, 2008, they observed from their unmarked vehicle two individuals in a parked pickup truck pull a closed bag out of the truck's center console and place it “in the center of the front area of the truck.” Both occupants then handled the bag. When the truck began moving, the detectives followed it in their vehicle. After the detectives activated their vehicle's emergency lights, the truck accelerated, and the truck's passenger threw a bag out of the window. After the truck stopped, the detectives took into custody appellant, who was the driver of the truck, and Jamal Douglas, the truck's passenger, and then recovered the bag. The bag contained a digital scale and eight smaller bags, each of which, it was later determined, contained several ounces of cocaine.

Beginning on February 4, 2011, appellant and Douglas were tried together for possession of cocaine with intent to distribute and related charges. Detectives Jester and Geare were the only witnesses, both called by the State. During cross examination of Detective Jester, counsel for appellant asked, “did you or your partner request any fingerprint analysis of [204 Md.App. 704]anything that was in that closed bag?” Detective Jester said that he did not. Counsel then asked “[d]id you request any DNA evidence of what was found in those two closed bags?” Detective Jester again answered that he did not.

On redirect examination by the State, Detective Jester testified that it was not common practice to conduct fingerprint analysis or DNA tests on evidence like the recovered narcotics. After the close of evidence, the State requested a jury instruction on “specific investigative techniques.” The court heard argument and stated it would give the requested instruction.

The court instructed the jury that

[d]uring the trial you've heard testimony and you may hear argument of counsel that the State did not utilize a specific investigative technique or techniques or scientific tests, I instruct you that there's no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case.

During closing argument, The State told the jury that it

might hear some defense complaints about there not being any DNA or there not being any fingerprints. Well, what's the point? This isn't a who done it. You ask for DNA and fingerprints when you don't [know] whose it might be. We know whose cocaine this was because we know Detective Geare and Detective Jester told us it was in between the Defendants and they both had their hands all over it.

Counsel for appellant also discussed the issue during closing argument, stating:

[W]e raise the issue of DNA and prints because the State has requested and did receive a question about scientific tests. So, it's not what they proved, but what didn't they prove or what could they have proved in this case.

Very simply, we'd have a evidence control, we'd have a chemist, fingerprint experts, could have absolutely subjected all of this evidence, especially, especially these plastic bags for DNA and for prints. Never done. Now, why wasn't it done? I'll tell you why it wasn't done.

[42 A.3d 711]

If you [204 Md.App. 705]refer to the testimony of the detectives who are here today, present, they make observations and they were crystal clear that they could see into a console area what was in that console area.

The remainder of defense counsel's closing argument focused on the reliability of the State's witnesses, the accuracy of the detectives' observations, the recovery of the physical evidence, the criminal agency of his client, and other matters.

During the trial, the State moved to strike one of the jurors after the juror was seen waving and smiling to someone in the courtroom audience. When questioned by the court, the juror stated she saw someone in the courtroom that she knew who “used to mess with, used to hang with [her children's] father.” She also said that it would not affect her ability to serve impartially as a juror. The court questioned some spectators who were sitting in the area of the courtroom where the juror had waved, but none of the individuals acknowledged any familiarity with any of the jurors. The juror in question then informed the court that the person to whom she had waved was no longer in the courtroom, at which point the court granted the motion to strike, over defense objection, and replaced the juror with an alternate. Later in the trial, the court conducted additional inquiries aimed at divining to whom the stricken juror had waved, although the record does not reflect a definite identification of that person.

On February 7, 2011, the jury convicted appellant of all charges. This timely appeal followed.

Questions Presented

Appellant presents the following two questions:

1. Was [appellant]'s constitutional right to a fair trial violated by the trial courts's instruction to the jury that there was no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case?

2. Did the trial court abuse its discretion in removing a juror?

[204 Md.App. 706]We shall answer the first question in the affirmative, and as we shall reverse appellant's convictions on that basis, we decline to address the second question.

Discussion

On appeal, appellant contends that the “anti-CSI” jury instruction was improper under the Court of Appeals' holding in Atkins v. State, 421 Md. 434, 26 A.3d 979 (2011).¹ Noting that the instruction propounded in this case was identical to the one challenged in Atkins, appellant argues that the instruction was improper, and thus, his conviction must be reversed. The State, while conceding that “[w]ith the hindsight of Atkins and Stabb [ v. State, 423 Md. 454, 31 A.3d 922 (2011) ], it may have been error” for the court to issue the instruction challenged here, asserts that those cases should be applied only prospectively and not to convictions, like appellant's, rendered before those cases were decided.² In the alternative, the State argues that, even if the instruction was in error, the error was harmless due to the “overwhelming” evidence against appellant presented at trial.

[42 A.3d 712]

The primary issue before us is whether the holdings in Atkins and Stabb are to be applied to cases pending on direct appeal or are to be applied entirely prospectively. Before discussing that issue, however, we shall address whether the instruction, based on the record in this case, is improper under Atkins and Stabb, assuming the decisions are applicable. The State stops just short of conceding the issue.

Prior to appellant's trial, this Court had decided Evans v. State, 174 Md.App. 549, 922 A.2d 620,cert. denied,400 Md. 648, 929 A.2d 890 (2007), a narcotics case similar to the case before us. In that case, we examined a similar jury instruction. Evans was convicted of violating controlled dangerous [204 Md.App. 707]substance laws. A detective, who conducted an undercover narcotics purchase, testified as the sole eyewitness to the transaction. Id. at 555, 922 A.2d 620. Defense counsel, in cross examining the detective, asked why the police had not employed “specific investigative techniques” during the operation. Id. at 562, 922 A.2d 620.

During closing argument, defense counsel “stressed the lack of the State's evidence to demonstrate a ‘cross-check of reliability,’ ” and told the jury:

Now, you have a right to assess the credibility of this detective. We understand that. But besides what he said and however you interpret what he said and how he said it and what areas he may have retrieved it from besides that, there are no other real ways to prove this, because the arrest team, the lack of any video surveillance, whatever, none of that, absolutely none of that exists in this case.

Id. at 562–563, 922 A.2d 620 (emphasis added).

Counsel for the co-defendant argued, in part:

Now, I asked a number of questions, because I can't believe that people would get convicted on a case like this or even charged on a cases like this, but i asked—and [appellant's counsel] used the term “cross-checks”—but I asked about certain things because it makes sense to me that if you're going to convict somebody of felonies, of serious crimes, you've got to have some evidence. So how about a videotape or an audiotape?.... You have a situation where there are absolutely no scientific tests that implicate my client in any way. There's no audio. There's no video. There's no fingerprints. There is nothing.

Id. at 563–64, 922 A.2d 620 (Emphasis added. Footnote omitted.)

We noted that, while counsel for Evans' co-defendant objected to the jury instruction at issue, Evans' counsel failed...