Patterson v. State

• Decision Date: 09 December 1999
• Docket Number: No. 16,16
• Citation: 741 A.2d 1119,356 Md. 677
• Parties: Andre PATTERSON v. STATE of Maryland.
• Court: Maryland Court of Appeals

741 A.2d 1119

356 Md. 677

Andre PATTERSON v. STATE of Maryland.

No. 16, Sept. Term, 1999.

Court of Appeals of Maryland.

December 9, 1999.

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

Steven L. Holcomb, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and ROBERT L. KARWACKI (retired, specially assigned), JJ.

CATHELL, Judge.

Petitioner Andre Patterson was convicted by a jury in the Circuit Court for Montgomery County of possession of cocaine with intent to distribute and various driving offenses. He appealed to the Court of Special Appeals. That court affirmed petitioner's convictions in an unreported opinion holding that the evidence was legally sufficient to support a conviction for the possession of cocaine with intent to distribute, that the trial judge did not erroneously refuse to give a requested "missing evidence" instruction to the jury, and that the trial judge did not erroneously deny petitioner's motion to suppress physical evidence.

We granted a writ of certiorari to consider whether the trial court erred in refusing to give the "missing evidence" instruction. We also address petitioner's argument that he was denied due process of law as a result of that refusal. Because we shall hold that a party generally is not entitled to a missing evidence instruction, we shall affirm.

I. Facts

At approximately 4:45 p.m. on April 16, 1996, Officer Brian Stone and Corporal Ronald Perry of the Montgomery County Police Department observed petitioner run a stop sign while driving a tan 1980 Buick Century bearing temporary District of Columbia vehicle tags. They stopped the vehicle and Corporal Perry ran a check on petitioner's District of Columbia driver's license. After finding the driver's license to be valid, he conducted a records check through the Maryland Motor Vehicle Administration and learned that petitioner's Maryland license had been revoked. The officers then placed petitioner under arrest and ordered him into the front passenger seat of the police cruiser. Officer Stone sat in the driver's seat of the police car next to petitioner while Corporal Perry conducted an inventory search of the 1980 Buick Century. Both watched as Corporal Perry inspected the vehicle. The search produced a dirty jacket in the trunk of the car. In the jacket pocket was a plastic sandwich baggie, which contained thirty one-inch by one-inch clear Ziploc baggies, each of which individually contained a suspected rock of crack cocaine. At the moment Corporal Perry removed the baggie from the jacket pocket, Officer Stone heard petitioner exclaim, "Oh shit." The evidence was later analyzed by a chemist and confirmed to be a total of 4.93 grams of cocaine.

During the trial, instead of offering the jacket into evidence, the prosecution offered a photograph of the jacket showing it while it was in the trunk of petitioner's car. Cross-examination of both police officers revealed that the jacket was never held as evidence by the police, that the jacket was not the kind of evidence typically held as evidence by their agency, and that neither officer was aware of the jacket's current whereabouts. Petitioner's theory of the case was that the jacket did not belong to him and he apparently wished to try on the jacket at trial to show it did not fit him. There was no evidence indicating that the State was aware of whether petitioner owned the jacket, that petitioner intended to assert that the jacket was not his, or that the jacket did not fit him. At the close of trial, petitioner requested that the court issue a "missing evidence" instruction allowing the jury to infer that, because the State could not produce the jacket, its admission into evidence would have been unfavorable to the State. The requested instruction read as follows:

You have heard testimony that a piece of evidence in this case, a coat, was not produced at trial by the State. If a piece of evidence could have provided important information in this case and if the evidence was peculiarly within the power of the State to produce, but was not produced by the State and the absence of that evidence was not sufficiently accounted for or explained, then you may decide that the evidence would have been unfavorable to the State.

The trial court refused to deliver the instruction. The Court of Special Appeals affirmed, holding that the trial judge had wide discretion in making such decisions. We granted a writ of certiorari to address the following issue: "In a case where [petitioner] is charged with possession with intent to distribute cocaine found inside a jacket which the defense claims did not belong to [petitioner], and where the State has lost the jacket, did the trial court err in refusing to give a missing evidence instruction?"

II. Discussion and Analysis

The law concerning failure to produce evidence is well-defined in Maryland. If the State fails to produce evidence that is reasonably available to it or fails to explain why it has not produced the evidence, a defendant is permitted to comment about the missing evidence in his or her closing argument to the jury. Eley v. State, 288 Md. 548, 555-56, 419 A.2d 384, 388 (1980); Henderson v. State, 51 Md.App. 152, 441 A.2d 1114 (1982). In Eley, the State failed to produce fingerprint evidence against Eley and relied solely on eyewitness testimony for establishing his identification. In closing argument, defense counsel sought to argue that the State's failure to utilize the more reliable fingerprint identification, and its failure to explain why it did not produce such evidence, gave rise to an inference that Eley's fingerprints were not at the scene of the crime and, thus, he was not there. The trial court refused to allow defense counsel the opportunity to make this argument and the Court of Special Appeals affirmed. This Court reversed stating, "[o]ne can reasonably draw some adverse inference from the use of an inferior method when a superior [one] was readily available." Eley, 288 Md. at 555,419 A.2d at 388 (quoting People v. Carter, 73 Ill.App.3d 406, 410, 29 Ill.Dec. 631, 392 N.E.2d 188, 192 (1979) (second alteration in original)).

The Court of Special Appeals correctly summarized our holding in Eley when it said, "[t]he message sounded by Eley is clear: Possible relevant evidence not introduced, or its absence explained, may be used against the State." Henderson, 51 Md.App. at 153, 441 A.2d at 1115 (1982). The law of Maryland concerning nonproduction of evidence is well-established: An inference may be made against the State. Such inferences have been allowed to take the form of closing arguments.

A. The "Missing Evidence" Jury Instruction

In Maryland, analysis of the denial of a request for a missing evidence instruction begins with the recognition that a trial judge has a duty, upon request in a criminal case, to instruct the jury on the applicable law. Maryland Rule 4-325(c) provides in pertinent part: "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 binding.... The court need not grant a requested instruction if the matter is fairly covered by instructions actually given." This Court has interpreted Rule 4-325(c) as "requir[ing] the trial court to give a requested instruction under the following circumstances: (1) the requested instruction is a correct statement of the law; (2) the requested instruction is applicable under the facts of the case; and (3) the content of the requested instruction was not fairly covered elsewhere in the jury instruction actually given." Ware v. State, 348 Md. 19, 58, 702 A.2d 699, 718 (1997); see also Mack v. State, 300 Md. 583, 592, 479 A.2d 1344, 1348 (1984)

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Maryland Rule 4-325(c) imposes a requirement that instructions be given in respect to the applicable law in a case. It does not apply to factual matters or inferences of fact. Instructions as to facts and inferences of fact are normally not required. When a party fails to produce evidence, an inference may be made against it. Many inferences, however, may be drawn from a missing piece of evidence and "emphasis of one possible inference out of all the rest by a trial judge can be devastatingly influential upon a jury although unintentionally so." Yuen v. State, 43 Md.App. 109, 114, 403 A.2d 819, 823 (1979). As this Court has stated in the past in regard to missing witness instructions, when "the inference is communicated to the jury as part of the judge's binding jury instructions, [it] creat[es] the danger that the jury may give the inference undue weight. At the very least, a trial judge's jury instruction ... may have the effect of overemphasizing just one of the many proper inferences that a jury may draw." Davis v. State, 333 Md. 27, 52, 633 A.2d 867, 879 (1993).

Because most evidentiary inferences are questions of fact, not questions of law, missing evidence instructions can be distinguished from instructions on the elements of the crime that a defendant is charged with, instructions on the affirmative defenses that a defendant may utilize, and from evidentiary presumptions that the law recognizes but, without an instruction, a jury would not recognize. Elements, affirmative defenses and certain presumptions relate to the requirement that a party meet a burden of proof that is set by a legal standard. A trial judge must give such an instruction if the evidence generates the right to it because it sets the legal guidelines for the jury to act effectively as the trier of fact. An evidentiary inference, such as a missing evidence or missing witness inference, however, is not based on a legal standard but on the individual facts from which inferences can be drawn and, in many instances, several inferences may be made...