Bing Fa Yuen v. State, 1317

• Decision Date: 12 July 1979
• Docket Number: No. 1317,1317
• Citation: 43 Md.App. 109,403 A.2d 819
• Parties: BING FA YUEN and Shui Ping Wu v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 109

43 Md.App. 109

403 A.2d 819

BING FA YUEN and Shui Ping Wu v. STATE of Maryland.

No. 1317.

Court of Special Appeals of Maryland.

July 12, 1979.

Barry H. Helfand, Rockville, for appellants.

Deborah K. Handel, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Andrew L. Sonner, State's Atty. for Montgomery County and Irma S. Raker, Asst. State's Atty. for Montgomery County on the brief, for appellee.

Argued before MOORE, LOWE and MacDANIEL, JJ.

LOWE, Judge.

Bing Fa Yuen and Shui Ping Wu were convicted by a jury in the Circuit Court for Montgomery County of extortion, I. e., violating Md.Ann.Code art. 27, § 562. The indictments charged that they

"did verbally threaten Raymond NMN Lee to do injury to the person and property of Raymond Lee and Kam Chu Kwong with a view to extort . . . ."

The initial contention of error, thought by appellants to have been committed at the trial, was the judge's refusal to grant a "missing witness" instruction because Kam Chu Kwong (referred to as Stella Kwong) was never produced by the State to testify; however, appellants' contentions are founded upon insubstantial support.

They begin by stating that:

"The witness, Kwong, was named as a victim in the indictment."

As can be seen above, that is simply not correct. The Victim of the crime was Raymond Lee, he who was threatened with a view to extort. Stella Kwong was never threatened with a view to extort although she was one of the subjects of threat and injury intended to coerce payment from Raymond Lee.

More significantly to the issue here, appellants next contend that:

"She (Stella Kwong) was not accessible to counsel for two reasons: (1) She was in (under) the Federal Witness Protection Act, and (2) She refused to talk to counsel."

Apropos of the prerequisite to a right to a missing witness instruction, appellants conclude that

"(t)he witness, almost a party, was therefore: (1) particularly available to the State, (2) her testimony concerned the basic issue in controversy, and (3) it would be natural for the party (State) to have called said witness in presenting its case. Brooks v. Daley, 242 Md. 185 (218 A.2d 184)."

Preliminarily, we note that the record does not indicate, nor do appellants suggest, that Stella Kwong was ever directly threatened or "extorted." Her testimony would have at most been hearsay, repeating threats which Lee had told her were made to him. She was not, therefore, "almost a party," nor would her testimony concern "the basic issue in controversy" other than in a tangential and perhaps inadmissible fashion.

More significant from a legal view are appellants' contentions, based upon Brooks v. Daley, that Stella Kwong was "particularly available to the State" and that "it would be natural for the party (State) to have called" her. That is presumably an application of the rule appropriate to civil cases, but until Christensen v. State, 21 Md.App. 428, 320 A.2d 276 (1974), Maryland had never recognized the application of the rule to criminal cases.

Since our opinion in Christensen acknowledging the viability of the missing witness rule in criminal cases in Maryland, we have been deluged with every conceivable twist invoking application of that permissible inference, notwithstanding the Court of Appeals' reversal of our opinion in that case upon its facts. Christensen v. State, 274 Md. 133, 333 A.2d 45 (1975). See Pierce v. State, 34 Md.App. 654, 658-659, 369 A.2d 140 (1977), Cert. denied, 434 U.S. 907, 98 S.Ct. 307, 54 L.Ed.2d 194 (1977). In our Christensen, we definitionally relied upon the hoary Supreme Court case of Graves v. United States, 150 U.S. 118, 14 S.Ct. 40, 37 L.Ed. 1021 (1893):

" '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.' Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 37 L.Ed. 1021." Christensen v. State, 21 Md.App. at 430, 320 A.2d at 277.

The definition precludes from the rule's operation those witnesses whose production is not "peculiarly" within the power of the party against whom the inference may be drawn. Graves v. United States, 150 U.S. at 121, 14 S.Ct. 40. There is no such presumption or inference where the witness is available to both sides. Christensen v. State, 274 Md. at 134, 333 A.2d 45. Although Stella Kwong refused to speak with appellants' attorney before trial, appellants admitted at argument that they were aware of her availability through the State's Attorney's office. They did not choose to subpoena her presumably relying upon the fact that the State had indicated that she would be a witness. But Stella Was available to them by subpoena and they cannot excuse their failure to subpoena her by claiming to have relied on the State's indication that she would be called. She was, therefore, "equally available" and so presumed unless appellants showed the court below that they had exhausted the avenues available to them to produce her. See Christensen v. State, 274 Md. 133, 333 A.2d 45.

Appellants added a final innovative twist to their requested instruction. They included the admonition to the jury that they should decide whether the rule should apply in this case at all.

"I would ask the Court to instruct the jury that evidence has been presented in this trial which indicates that a valuable witness who has knowledge of the facts in issue in this case was not called to testify. You are instructed that if either the State or the Defendant failed to call such a presumption rises that his testimony would have been unfavorable to the party who did not call him. It is up to you to decide which party should have naturally called this witness. This rule does not apply where the testimony of an uncalled witness is purely cumulative and the witness is not in a better position to know the facts than those witnesses who were called, nor does the rule apply where the reasons for not calling the witness are reasonable and proper."

Initially, we note that the request was not directed specifically to the absence of Stella Kwong, it was a general statement, presumably, that the jury might apply the rule willy-nilly. Secondly, what is referred to as a presumption, here and in some of the cases, is really a permissible inference. The court cannot instruct a jury that it Must presume unfavorable testimony upon the absence of a witness. The instruction the Advisory instruction in Maryland is that the jury May infer. See United States v. Stulga, 584 F.2d 142, 145 n. 1 (6th 1978). The instruction becomes merely a highlighting of a significant void in a party's case; but even in the absence of an instruction, the jury is not precluded from so inferring. Inferences of all types are always available to the factfinders. ¹

The failure to grant an affirmative instruction does not remove the availability of the inference. As a consequence, whatever prejudice may usually come from not giving an advisory instruction is diminished, because the inferential thought process is still available. The prejudice is simply that such an inference is not given preferred instructional attention over any other inferences available from the testimony or absence of testimony.

Possibly for that reason, judges hesitate to grant the missing witness instruction; they do not wish to emphasize one legitimate inference over all others which the jurors have been told are solely within their judgment. It is also for that reason that the right to a missing witness instruction is circumscribed with the limitations, inter alia, that the testimony or evidence must be material, noncumulative and the witness " peculiarly" available. The judge must find all of these criteria applicable before he highlights the absence of the witness. In most instances, emphasis of one possible inference out of all the rest by a trial judge can be devastatingly influential upon a jury although unintentionally so. We see no error in the case before us.

The second question asked by appellants is:

"Did the Trial Court commit reversible error by refusing to inspect the State's Attorney's file plus police reports and investigative notes, not only after proper motion but after a prior promise to do so?"

The question asks too much. Appellants are neither entitled to such judicial discovery, nor did the court promise it.

Prior to and during trial, appellants sought discovery of Statements made by witnesses or potential witnesses. Apparently with the possible exception of a statement of Stella Kwong, the specific material requested was given to appellants before the end of the trial.

Relying primarily on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), appellants contend that it was error for the trial court to refuse to examine, post-trial, the entire file of the State's Attorney, the police reports and investigative reports for discoverable evidence.

The issue took shape during the examination of the witness Hang Sang Leong. According to appellants' brief:

"After direct but before cross-examination, defense counsel asked the Court To compel the State to produce any statement made by this witness so that counsel could cross-examine and determine if there was any exculpatory information or if there was any inconsistency of statements. The State was under a duty to supply counsel with Brady v. Maryland information. Counsel again pointed out that later in the trial the State was going to call her and Kwong and further that counsel wished to see Their respective statements. (emphasis added).

To this, the court replied at T. 202: ²

"THE COURT: Well, it is up to you. As I said before, I am not going to get into a position of ordering the State to produce Statements. But if the trial results in a conviction I will examine those Statements in camera. If there are...