Gunning v. State

Decision Date01 September 1995
Docket NumberNos. 132,s. 132
Citation701 A.2d 374,347 Md. 332
PartiesMark D. GUNNING, Sr. v. STATE of Maryland. Gary L. HARRIS v. STATE of Maryland. ,
CourtMaryland Court of Appeals

Nancy S. Forster, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for appellant.

Mary Ellen Barbera, Asst. Atty. General, on brief, Baltimore, for appellee.



Two cases before the Court, Mark D. Gunning, Sr., v. State, No. 132, September Term, 1995, and Gary L. Harris v. State, No. 19, September Term, 1996, present the identical issue: whether the trial judge erred in refusing to give a requested jury instruction on eyewitness identification. In both cases the defendant was convicted based on the uncorroborated identification of a single eyewitness and in both cases the defense was mistaken identification. Each case involves the same circuit court judge whose refusal to read the instruction was based on his conclusion that "identification is a question of fact" that, unlike a question of law, requires no instruction to the jury. The judge indicated on the record that he, in fact, "never give[s] that instruction." (Emphasis added). In light of the commonality of issues and relevant facts, we shall decide both cases in this opinion. For the reasons set forth below, we hold that the trial judge abused his discretion and we reverse the petitioners' convictions.

I. Mark D. Gunning, Sr.

We begin with a brief summary of the facts in each case. Mark D. Gunning, Sr., was charged with robbery with a deadly weapon and related offenses arising from the February 4, 1994, robbery of Marie Hoopes. Gunning was convicted on all charges by a jury in the Circuit Court for Baltimore City.

At trial, Ms. Hoopes testified that she was attacked near her residence in Baltimore as she and her husband were entering their vehicle. The assailant grabbed Ms. Hoopes around her neck, held a knife to her throat, seized her purse, and fled. Ms. Hoopes never saw her attacker's face.

Mr. William Hoopes testified that he was seated in the driver's seat of his vehicle during the attack on his wife. He indicated that he was approximately two feet from the assailant and stated that he looked "straight in [the assailant's] eyes." Mr. Hoopes further testified that the attacker was wearing "dark pants and [a] dark jacket," had on a "black baseball cap ... with the [bill] turned around backwards," was "between five-eight and six foot" in height, and had a mustache. Mr. Hoopes made both a pre-trial identification by photographic array and an in-court identification of Gunning as the perpetrator of the crime.

Gunning asserted an alibi defense to the charges. He presented testimonial evidence that he was at home watching a video tape with his father, sister, and a friend at the time of the robbery. Mr. Hoopes was thus mistaken, Gunning argued, in identifying him as the perpetrator.

At the close of evidence, Gunning's counsel provided the court with proposed jury instructions, including an identification instruction contained in MICPEL, MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS. That instruction, MPCJI-Cr 3:30, provided:

"The burden is on the State to prove beyond a reasonable doubt that the offense was committed and that the defendant was the person who committed it. You have heard evidence regarding the identification of the defendant as the person who committed the crime. In this connection, you should consider the witness'[s] opportunity to observe the criminal act and the person committing it, including the length of time the witness had to observe the person committing the crime, the witness'[s] state of mind and any other circumstance surrounding the event. You should also consider the witness' certainty or lack of certainty, the accuracy of any prior description and the witness'[s] credibility or lack of credibility, as well as any other factor surrounding the identification. [You have heard evidence that prior to this trial, a witness identified the defendant by _______.] It is for you to determine the reliability of any identification and to give it the weight you believe it deserves.

The identification of the defendant by a single eyewitness, as the person who committed the crime, if believed beyond a reasonable doubt, can be enough evidence to convict the defendant. However, you must examine the identification of the defendant with great care."

Counsel also requested the following mistaken identity instruction, which follows substantially the text of DAVID E. AARONSON, MARYLAND CRIMINAL JURY INSTRUCTIONS, § 5.10:

"Evidence has been introduced that William Hoopes is mistaken in identifying the defendant as the perpetrator of the crime.

Whether or not a witness has adequately identified the defendant as the perpetrator of the crime is a question solely for you to decide. In other words, the credibility of the witness is a matter for your consideration and determination. In reaching your determination, you may consider such factors as any mistake, hesitancy or inconsistency on the part of the identifying witness.

Specifically, you may consider the opportunity of the witness to view the person committing the criminal acts at the time of the crime, including: (1) how long the encounter lasted; (2) the distance between the various persons; (3) the lighting conditions at the time; (4) the witness'[s] state of mind at the time of the offense; and (5) the witness'[s] degree of attention to the offender during the commission of the offense.

Also, you may consider the accuracy of the witness'[s] prior description of the criminal, if any; the certainty or lack of certainty expressed by the witness; the demeanor and conduct of the witness making the identification; and any other direct or circumstantial evidence which may identify the person who committed the offense charged or which corroborates--that is, strengthens--or negates the identification of the defendant by the witness."

The trial judge failed to give either identification instruction. When the court subsequently inquired as to whether there were any exceptions to the jury instructions, this exchange ensued:

"[DEFENSE COUNSEL]: Your Honor, I would just ask the Court to read the mistaken identity jury instruction I gave the Court from Maryland Criminal Jury Instruction Manual.

THE COURT: Identification is a[n] issue of fact, not of law. There is no issue of law that requires instruction to the jury on identification." (Emphasis added).

The jury found Gunning guilty on all charges and the trial judge imposed a sentence of 10 years imprisonment. Appeal of his conviction on various grounds to the Court of Special Appeals proved unsuccessful. This Court granted certiorari on the single issue of whether the trial judge erred in refusing to give the instruction on eyewitness identification and indicating he never gives that instruction.

II. Gary L. Harris

Gary L. Harris was charged with battery and theft in connection with a June 11, 1995, purse snatching. Harris was tried by jury in Baltimore City Circuit Court and found guilty on both charges.

A witness for the State, Robin Carponetto, testified that she observed the purse-snatching from the window of a nearby business establishment. Carponetto stated that she described the perpetrator to police as a "black male, medium to dark complected" with "scars like keloids." She further informed the investigating officers that the perpetrator was wearing a black or navy hat, a dark blue T-shirt, and gray or faded pants. Both at trial and in a pre-trial photographic array, Carponetto identified Harris as the man whom she saw steal the victim's purse.

Harris attacked the accuracy of Carponetto's identification, asserting that he was a victim of mistaken identity. At the conclusion of the presentation of evidence, Harris's counsel requested the same MICPEL pattern instruction on identification as was requested by counsel at petitioner Gunning's trial. The trial judge responded:

"Identification is an issue of fact. It involves no issue of law which the jury needs to consider.

Give it to the Clerk so the record will show you requested it.

But I never give that instruction. It is regrettable it found its way into the pattern jury instructions.

* * *

I mean, I disagree that it's an appropriate--it's just not an appropriate instruction. I think it's exceedingly unfortunate that it found its way into a pattern jury instruction.

The Court is required to instruct the jury as to the law on any issue that is raised by the evidence. Identification is purely a question of fact." (Emphasis added).

The trial judge then delivered the jury instructions, omitting the instruction on identification requested by defense counsel. When the judge inquired as to whether there were any exceptions to the instructions, counsel for Harris stated: "Your Honor, just the one I wanted the Court to ask. * * * That would be the one regarding the identification, the Maryland Pattern Jury Instruction."

The jury found Harris guilty of battery and theft. The trial judge imposed concurrent sentences of 5 years imprisonment for the battery conviction, and 18 months imprisonment for the theft conviction. Harris appealed his convictions to the Court of Special Appeals. This Court issued a writ of certiorari to the intermediate appellate court, however, prior to its review of the case.


The petitioners contend that a trial judge is required to deliver a requested identification instruction whenever the issue of the accuracy of an identification is fairly generated by the evidence. 1 In support of this argument, the petitioners cite Maryland Rule 4-325(c), which provides:

"The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are...

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