Henderson v. State

• Decision Date: 04 March 1982
• Docket Number: No. 818,818
• Citation: 51 Md.App. 152,441 A.2d 1114
• Parties: James Monroe HENDERSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 152

51 Md.App. 152

441 A.2d 1114

James Monroe HENDERSON v. STATE of Maryland.

No. 818.

Court of Special Appeals of Maryland.

March 4, 1982.

Michael R. Malloy, Asst. Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

Stephen B. Caplis, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., William A Swisher, State's Atty. for Baltimore City, and Mark P. Cohen, Asst. State's Atty. for Baltimore City, on the brief, for appellee.

Submitted before GILBERT, C. J., and MORTON, and MASON, JJ.

GILBERT, Chief Judge.

On September 16, 1980, the Court of Appeals decided Eley v. State, 288 Md. 548, 419 A.2d 384 (1980). ¹

Eley mandates that if the State does not produce possible other relevant evidence or explain its failure to produce that evidence, the defendant is permitted to comment to the fact finder on the State's shortcoming. The clear purpose of comment by the defense is to create an inference that had the State introduced the non-produced or non-explained missing evidence, the introduction would be beneficial to the defendant. Ergo, the defense would probably assert that the State, put to the choice of producing evidence helpful to the accused or ignoring such evidence, would opt for the latter. Such an argument might well convince a jury that there is a reasonable doubt of the defendant's culpability.

The message sounded by Eley is clear: Possible relevant evidence not introduced, or its absence explained, may be used against the State.

In Eley the defendant was charged, inter alia, with assault with intent to murder a Mr. Johnson and of robbing Ms. Ada Jones of her car. There was testimony that Eley took the Jones' vehicle and drove from the crime scene. The vehicle was recovered the next day. The State at trial did not introduce any evidence concerning Eley's fingerprints being found on or about the Jones' automobile. For that matter, fingerprints were apparently not mentioned until defense counsel proposed, in his closing argument to the jury, to allude to the absence of fingerprint evidence. The trial judge refused to allow that argument. Eley was convicted. On appeal to this Court, the judgment was affirmed in an unreported per curiam opinion. ² The Court of Appeals granted certiorari and reversed.

The majority quoted with approval People v. Carter, 73 Ill.App.3d 406, 29 Ill.Dec. 631, 392 N.E.2d 188 (1979). ³ There, identification was made of two handcuffed persons immediately after a robbery. There was no line-up. Defense counsel asked the jury, "Shouldn't there have been a line-up?" The prosecution objected and in the presence of the jury exclaimed that " '(t)his Court has ruled ... (the identification) was a proper procedure.' '(T)his Court has ruled that the procedure was constitutional,' and '(t)he Court has already ruled in pre-trial.' " The defense objected to those remarks. The appellate court, while reversing on other grounds, commented:

"One can reasonably draw some adverse inference from the use of an inferior method when a superior was readily available. In the course of an argument that the method used was flawed, counsel should not be restricted from comparing that method with others that the evidence showed were not used. The defense here was discussing the evidence. Counsel never suggested that the police had done anything illegal, immoral, or improper, or anything else not in evidence." 73 Ill.App. at 410, 29 Ill.Dec. at 635, 392 N.E.2d at 192. (Emphasis in original.)

There was evidence in Carter that the defendants were apprehended almost immediately after the commission of the crime. They were taken in handcuffs to the place where the crime occurred. A victim was told by the police that "they thought they had caught the criminals, and (the victim was) asked ... to go downstairs and see if she could identify the suspects.... The defendants (whom she identified) were the only people ... (in) handcuffs." The Carter Court could and did readily conclude that the identification procedure was in evidence.

Eley ⁴ steps beyond Carter. There was, as we have said, no evidence introduced at Eley's trial concerning fingerprints. There was, however, evidence that Eley had fled in a victim's vehicle; but whether Eley was wearing gloves, wiped his fingerprints from the car, or the police simply did not "dust" the car for fingerprints is left unstated. The failure to produce evidence of fingerprints or explain the reason for not producing the "prints" proved to be the prosecution's Achilles' heel because the Eley Court held: The "unexplained silence concerning a routine and reliable method of identification expecially in a case where the identification testimony is at least subject to some question ... is within the scope of permissible argument...."

The instant case involves, inter alia, what might be termed an inverse application of Eley. We explain.

The appellant, James Monroe Henderson, was charged with murder, robbery with a dangerous and deadly weapon, and the usual related counts. At a jury trial in the Criminal Court of Baltimore, Judge Marshall A. Levin, presiding, Henderson was convicted of felony murder, robbery with a dangerous and deadly weapon, and two counts of the use of a handgun in the commission of a crime of violence. To avoid any possible confusion, it should be understood that the murder victim was not the same person who was robbed.

Prior to the actual trial, the appellant asked Judge Levin to grant a motion in limine so as to preclude the State's offering evidence showing that appellant was residing at a prerelease center at the time of arrest. Judge Levin, in granting the motion, instructed the State not to introduce evidence that the appellant was apprehended at a prerelease center. The judge, however, cautioned defense counsel that, "if the Defendant opens the door, then I am not going to preclude the State from having a fair shake, so to speak. So, all I'm saying now is that it can be brought out that ... (appellant) was arrested ... and that there can be no mention of rehabilitation or any other indication that Mr. Henderson has a criminal record.... (Nevertheless,) if ... (the defendant) open(s) the door, ... (he is) liable to cause ... (this) ruling to be different."

The State proved that the murder victim was shot to death, that a robbery was committed with the use of a handgun, that a gun was seen in the hands of the murderer-robber and that appellant was arrested at 902 Greenmount Avenue. No State witness mentioned that the prerelease center was located at that address.

The defendant-appellant, in his presentation of evidence, asked Detective Lawrence O'Brien of the Baltimore City Police Department: "During the course of your investigation, has the weapon been recovered?" The detective responded, "I have not recovered any weapon." The defense continued by asking, over objection, whether there was "any tangible evidence" such as fingerprints, foot prints, or any "other kind of ... tangible evidence ... which ... (may have) been recovered from the crime scene." The detective answered, "Not to my knowledge."

Those questions alerted the State to the defendant's possible reliance upon Eley when the time for closing argument arrived. Consequently, the State asked to be allowed to establish that a search of the place where appellant was arrested was not conducted because of the improbability of carrying a weapon into the prerelease center. Over the strenuous objection of the appellant, Judge Levin permitted the State to inquire as to the place where appellant was apprehended. The judge observed: "(I)t was unnecessary for the defense to bring out an undisputed fact by putting on the witness" and asking about the nonrecovery of the gun. We think it transpicuous that the appellant sought to give himself an "Eley edge" with "the State powerless to counteract that advantage...."

The appellant asserted that his inquiry about the recovery of the murder weapon did not open the door to the State's use of the fact that appellant was arrested at the prerelease center. In any event, Judge Levin allowed the State to ask Detective O'Brien where the arrest of appellant was made and whether a search warrant was obtained in order to "look for the gun." O'Brien said that appellant was arrested at the prerelease center, and that no warrant was obtained because he "felt it would be futile to" conduct a search of the Center.

Judge Levin then almost immediately instructed the jury:

"(T)he reference to where the Defendant was arrested, you will not consider ... as being significant at all, the place where he was arrested and the nature of the place where he was arrested, that should not enter into your viewpoint or deliberations."

We think Judge Levin properly allowed the State to educe testimony as to why the murder weapon was not located and presented at trial. Although appellant disavows any intent "to show that Detective O'Brien had not aggressively investigated the case," Eley would have allowed such an argument had appellant advanced it to the jury. Even considering appellant's assurance that there was no intention "in closing argument to say whether or not the police did anything wrong in their investigation in the matter," the inference to be drawn from Detective O'Brien's testimony was clear. Judge Levin explained that the examination extracted a "suspicious motive or suspicious fact" from which the jury could have inferred that the police were "less than aggressive in pursuing (the) case ... because if there was a gun, the detective should have gotten a search warrant and searched the (appellant's) premises for that gun." Judge Levin, as with all trial judges, is not permitted the luxury of hindsight when he is called upon to rule during a trial. Based on what was then before him, and cognizant of Eley, he took the appropriate measure to assure that the State was not treated unfairly.

We note that the...