Christensen v. State

Decision Date05 March 1975
Docket NumberNo. 145,145
Citation333 A.2d 45,274 Md. 133
PartiesWilliam Dean CHRISTENSEN v. STATE of Maryland.
CourtMaryland Court of Appeals

Albert D. Brault, Rockville (Brault, Scott & Brault, Rockville, on the brief), for appellant.

Alexander L. Cummings, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen. and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

SMITH, Judge.

Petitioner, William Dean Christensen (Christensen), was convicted of attempted rape by a Montgomery County jury after trial on that charge and charges of kidnapping, assault with intent to rape, assault and battery, and assault. The conviction was affirmed in Christensen v. State, 21 Md.App. 428, 320 A.2d 276 (1974). We granted the writ of certiorari in order that we might consider Christensen's contention that application of the 'missing witness' rule in criminal cases is 'an unconstitutional deprivation of the defendant's right to confrontation and cross-examination as guaranteed under the Sixth Amendment of the United States Constitution and Article 21 of the Declaration of Rights in the Maryland Constitution,' and that, 'assuming that the missing witness rule is not unconstitutional,' that 'it (was not) applicable in the present case.' We shall not address ourselves to the first contention because we conclude that the rule is not applicable to this case. For the same reason we shall be obliged to reverse the conviction.

The rule, as stated in 1 Underhill, Criminal Evidence § 45 (rev. 6th ed. P. Herrick 1973), is:

'The failure to call a material witness raises a presumption or inference that the testimony of such person would be unfavorable to the party failing to call him, but there is no such presumption or inference where the witness is not available, or where his testimony is unimportant or cumulative, or where he is equally available to both sides. The presumption or inference that the testimony of a missing witness would be unfavorable is applied most frequently when there is a relationship between the party and the witness, such as a family relationship, an employer-employee relationship, and, sometimes, a professional relationship. Generally, the accomplice-defendant relationship does not raise an inference against the defendant. In view of his constitutional privilege, no inference is raised against a defendant who does not testify, but if he does become a witness and then fails to explain away incriminating circumstances, such failure may be taken against him.' Id. at 91.

To like effect see 1 Wharton, Criminal Evidence § 148 (13th ed. C. Torcia 1972). For its application in a civil context see Clark-King Constr. v. Salter, 269 Md. 494, 507-08, 307 A.2d 485 (1973); Hoverter v. Director, 231 Md. 608, 609, 188 A.2d 696 (1963); 29 Am.Jur.2d Evidence § 180 (1967); 31A C.J.S. Evidence § 156(3) (1964); and 2 Wigmore, Evidence §§ 285 and 286 (3d ed. 1940). An excellent explanation of the rule, with a statement as to what we regard as the preferred procedure to be followed in a case where a jury instruction on the subject is requested, appears in State v. Clawans, 38 N.J. 162, 183 A.2d 77, 81, 82 (1962). 1

Little is to be gained by a recitation here of all the facts and circumstances of this case. Suffice it to say that the testimony of the prosecuting witness and of Christensen are in agreement that while in the Georgetown section of the District of Columbia she entered a motor vehicle operated by him; that she rode in the vehicle to Christensen's home in the Kensington section of Montgomery County; that she there left the vehicle; that she subsequently re-entered the vehicle; and that a neighbor of Christensen, Jesse Paine, was present at all times that she was in the vehicle. The prosecutrix said that Paine forced her to re-enter the vehicle. She alleged that Christensen attempted to rape her after the re-entry which he denied. Paine did not testify. There was testimony from the prosecutrix that Christensen told Paine that Christensen would 'get her first' and that Paine could 'have her after (Christensen).'

Christensen requested a jury instruction that 'there (was) no duty on the defendant to produce (Paine) and no inference (should) be drawn from the fact that he wasn't produced.' The State opposed this request, although it conceded that counsel for Christensen had done all in his power to locate Paine. It claimed that the jury was indeed entitled to draw an inference from the absence of Paine, apparently believing, as expressed in its brief here and in the Court of Special Appeals, that Christensen had failed to disclose to his attorney full and complete information as to the whereabouts of Paine. No evidence was presented to that effect. The record on the argument relative to this requested instruction includes:

'(Mr. Brault) There is another problem here, Your Honor, to take into account; even if this man were called to testify, under the State's theory they would be saying that the defendant would have to call a co-defendant, who would be subject to indictment, if the State is correct in its theory, and incriminate himself, and, of course, we all know that even if I called this man, if he had a grain of sense, and certainly if he had a lawyer, he would invoke the Fifth Amendment.

'(The Court) I don't know whether he would or not. He might decide to testify in exchange for leniency from the State. I don't know. I can't draw that conclusion.

'(Mr. Brault) I think that is patently clear, Your Honor, if the State's theory is right, the man would jeopardize himself unless the State granted him immunity in exchange for his testimony.

'(The Court) We can't make any conjecture on that point.

'(Mr. Brault) I understand, but I think the defendant is entitled to a fair trial, and I don't think that he is required to call someone under these circumstances to his jeopardy, Your Honor, as the Court said in Nelson (v. State, 5 Md.App. 109, 245 A.2d 606 (1968),) and DeGregorio (v. United States, 7 F.2d 295 (2d Cir. 1925),) and the other cases, if that were the case, then the party to a suit would always have to call every witness no matter how cumulative the evidence might be at this jeopardy (sic) because if he didn't, the other side would argue that the jury should infer something horrible about the testimony, and the State intends to argue that this man would testify adversely.

'There is no evidence at all in this case that would suggest that he would testify adversely.

'(The Court) Gentlemen, let's be realistic about this matter. Let's be realistic about it. All through the testimony there has been an indication that there was another man with this defendant, and that other man has not been produced and is not here today.

'Now, I am not going to comment and neither is the State as to any lack of diligence on your part, but the jury can certainly infer that this man was a friend of this defendant, and he was with him, and he lived in the same block, and the State in an effort to convict can make fair argument with respect to that, and, for the record, since you are appointed counsel, Mr. Brault, I want it clear that you have done an excellent job in defending this man, and there is no criticism whatsoever to be laid to you because you did not produce this man, and I accept your statement for the record out of the jury's presence that you attempted to and could not locate him.'

Near the conclusion of the State's opening argument to the jury counsel for the State said:

'There are a couple of things I would like to comment about the Defendant's version of this case, just one point, and on this point I am not going to say much, not going to say much because I'm going to leave it to your common sense, as I am leaving everything in this case, that is the question of Jesse Paine.'

This immediately brought defense counsel to his feet with a request to approach the bench where he said to the trial judge that he did not 'want to waive (his) objection to the State's commenting on Jesse Paine,' that he wished 'to repeat for the record that (he) t(ook) serious objection to the State's making comment on this subject, that they (were) transferring the burden of investigation and the burden of proof, and they (were) not entitled to do that.' After the trial judge advised that he did not agree with defense counsel, the State proceeded with argument, saying:

'(Mr. Santoro) Now, ladies and gentlemen of the jury: Like I was saying about Jesse Paine, I'm not going to say very much to you. He's not here. This is your decision. Perhaps if he were here, he would be able to help us search for truth in this case. That is all I'm...

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