Cost v. State
| Decision Date | 17 December 2010 |
| Docket Number | No. 116, Sept. Term, 2009.,116, Sept. Term, 2009. |
| Citation | 10 A.3d 184,417 Md. 360 |
| Parties | Ashanti COST v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
Marc A. DeSimone, Jr., Asst. Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for petitioner.
Robert Taylor, Jr., Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.
Russell P. Butler, Matthew S. Ornstein, Upper Marlboro, brief of Amicus Curiae Maryland Crime Victims' Resource Center, Inc.
Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.
Petitioner Ashanti Cost was convicted of reckless endangerment for an alleged stabbing attack on Michael Brown, a fellow inmate at the Maryland Correctional Adjustment Center ("MCAC"). During the course of investigating the incident, the State sealed Brown's cell and took several items of physical evidence into custody. Apparently, these items werelater disposed of by the State, rather than being preserved as evidence for use in Cost's trial. At trial, Cost sought a jury instruction regarding the destruction of this evidence, but his request was denied. Additionally, after his conviction, Cost received records indicating that Brown had a history of inflicting stab wounds upon himself. Cost unsuccessfully argued that this information should have been disclosed as material under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We granted certiorari to consider the following two questions:
We shall hold that the trial court erred by refusing Cost's proposed instruction, vacate Cost's conviction, and remand for a new trial. Because we so hold, we need not reach the second question presented.
Petitioner Ashanti Cost is an inmate at the Maryland Correctional Adjustment Center, a so-called "Supermax" prison, located in Baltimore City. At the time of the events giving rise to this appeal, Cost had recently been transferred to MCAC from another facility in Hagerstown. Cost alleges that this transfer to the more restrictive facility was retaliation for Cost's testimony before a Senate committee investigating the death of a Hagerstown facility inmate at the hands of prison guards.
According to the State, Cost attacked another MCAC inmate, Michael Brown, on September 28, 2005. Brown was detained at MCAC as a material witness for the federal government in a separate case. Cost was charged with assault in the first degree, assault in the second degree, openlywearing and carrying a deadly weapon with intent to injure, and reckless endangerment. At the time of the alleged attack, both Cost and Brown were "locked down" in their cells for twenty-three hours per day, except for medical escorts and one hour of " outside activity." This is standard practice in many "Supermax" prisons such as MCAC.
At Cost's trial in the Circuit Court for Baltimore City, Brown testified that he had been a federal informant for approximately six years, and that Cost had previously threatened to kill Brown because he was an informant. According to Brown, Cost threw feces into Brown's cell through cracks in the cell door, and issued a vulgar threat against Brown. Brown further testified that Cost grabbed Brown's clothing through a food slot in the cell door, pulled him close to the door, and stabbed him in the abdomen with an approximately six-inch long metal weapon "like an ice pick." Brown claimed that the wound "was bleeding a lot ... running like water." Brown testified that he was admitted to Johns Hopkins Hospital and treated for "internal bleeding, dizziness, a lot of things like that."
At trial, Cost pointed to a number of facts that he alleged cast doubt on Brown's version of events. To begin with, Cost had been searched before being allowed to leave his cell, and no weapons or other contraband were found on his person. After the attack, the entire unit area was searched for weapons, and none were recovered. Cost also challenged the alleged severity of Brown's injury, drawing support from Brown's hospital discharge forms. In particular, Cost relied on medical records stating that Brown's alleged ice pick wound was "approximately 1 inch long [and] only penetrated the skin" and was "approximately 3 millimeters in length...." Brown's recommended course of treatment was "over-the-counter pain relief such as Tylenol or ibuprofen [,]" which Cost argued cast doubt on the severity of the injury.
More significantly, Cost focused on a series of unusual evidence and chain of custody issues that arose relating to the condition of Brown's cell. At trial, the State introduced asevidence photographs of Brown's cell taken the evening following the alleged attack. The photographs show significant red staining on the floor of thecell, which Brown identified as his blood. 1 Brown also testified that the photographs showed a towel which he had used to try to stop his abdominal bleeding. Major Donna Hansen, who was MCAC's investigative officer at the time of the attack and who took the photographs, testified that when she entered Brown's cell she observed "a large amount of what appeared to be blood and smelled like blood on the floor and on the mattress[,]" as well what she believed to be several towels lying on the floor. She further testified that she did not collect any towels or bedding as evidence, as that would be the responsibility of the Department of Public Safety and Correctional Services's Internal Investigative Unit ("IIU"). Hansen testified that on the night of the attack, she placed a call to Detective Bob Fagen, the IIU duty officer on the day in question.
There is some uncertainty as to precisely what events followed Hansen's alleged call to Detective Fagen. According to Detective Karen Griffiths, a detective with the IIU at the time of these events, she received a call from Hansen on October 3, 2005, five days after the attack. Griffiths testified that Hansen said "that she had a cell sealed and wanted to know if [IIU] would release that cell...." According to Griffiths, this was the first time she became aware of the attack. Griffiths further testified that when she queried her supervisor about the case, it was assigned to her.
After the assignment, Griffiths went to MCAC to pursue her investigation. She did not, however, examine Brown's cell, because it had been cleaned. In addition, no physical evidence had been preserved from the cell—neither towels nor bedding had been stored for Griffiths's review. Griffiths testified that she did not tell Hansen to unseal the cell; those instructions apparently issued from Griffiths's supervisor. According to Griffiths, the case had actually initially been "referredback to Major Hansen, who is a trained investigator, and [IIU was] not going to handle that crime scene." Brown's clothing from the night of the alleged attack, which Hansen had collected, was not accepted by IIU's crime lab "because of the age and the lack of chain of custody."
The absence of the physical evidence from Brown's cell, the contents of which had apparently been disposed of by MCAC staff, led Cost to request a jury instruction regarding the destruction of evidence by the State. Specifically, Cost requested the following instruction:
This proposed instruction appears to be adapted from the Maryland Criminal Pattern Jury Instruction ("MPJI-CR") on missing witnesses. See MPJI-CR 3:29. 3
The State objected to Cost's proposed instruction on the grounds that there had been no direct testimony that the physical evidence from Brown's cell had been destroyed.4 Cost responded that theState "had the duty to preserve that crime scene for [Griffiths] to get there to investigate it[,]" and that the cell "was certainly in control of the State and nobody else" when Griffiths's supervisor told Hansen that the cell could be unsealed. The trial court ultimately refused to give the requested instruction, "in the absence of any testimony to support that the State deliberately destroyed the evidence...."
The jury ultimately acquitted Cost of assault in the first degree, assault in the second degree, and openly wearing and carrying a deadly weapon with intent to injure, but convicted him on the charge of reckless endangerment. Cost was sentenced to five years incarceration, to be served consecutive to his existing prison term.5 On appeal, the Court of Special Appeals affirmed the judgment of the trial court with respect to refusing to instruct the jury on the missing evidence. In an unreported opinion, the intermediate appellate court held that "the State's failure to preserve evidence, or the actual destruction of evidence, may .... give rise to inferences against the State...." It further held, however, that a defendant is not entitled "to an instruction where that instruction relates to permissible inferences of fact [,]" as opposed to an instruction on governing law, and affirmed Cost's conviction. We granted Cost's Petition for a Writ of Certiorari. Cost v. State, 411 Md. 355, 983 A.2d 431 (2009).
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