Robinson v. State

• Decision Date: 09 March 1989
• Docket Number: S,No. 155,155
• Citation: 554 A.2d 395,315 Md. 309
• Parties: Walter E. ROBINSON v. STATE of Maryland. ept. Term 1986.
• Court: Maryland Court of Appeals

Page 309

315 Md. 309

554 A.2d 395

Walter E. ROBINSON v. STATE of Maryland.

No. 155, Sept. Term 1986.

Court of Appeals of Maryland.

March 9, 1989.

Victoria S. Keating, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Norman L. Smith, Asst. Atty. Gen., (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY COUCH ^*, McAULIFFE and ADKINS, JJ.

McAULIFFE, Judge.

The defendant in a criminal trial did not produce a witness whose identity was known only to him, and who, according to the defendant, could give testimony that would tend to exonerate him. The trial judge instructed the jury that they could find that because the defendant failed to produce the witness, the witness's testimony would have been unfavorable to the defendant. The defendant contends the "missing witness" instruction should not have been given because it was more likely than not that the witness, even if called, would not have testified because of a legitimate fear of self-incrimination. Although we agree that in some circumstances the likelihood that a witness could and would refuse to testify on grounds of self-incrimination will so undermine the basis of the missing witness rule that the instruction should not be given, we do not find this to be such a case.

I.

The facts in this case are uncomplicated. At about 3:45 a.m. on March 26, 1985, Officers Richard Peil and Scott Harrold of the Baltimore City Police Department observed a 1985 brown Toyota fail to completely stop for a stop sign. They followed the Toyota without activating their emergency equipment or attempting to stop it. After about eight blocks, the Toyota stopped and passengers began to alight from it. The police officers ordered everyone to remain in the vehicle. Officer Peil, who approached from the passenger's side, said the courtesy lights continued to illuminate the interior of the vehicle because the doors were left ajar. He testified that he observed the ignition had been "popped"--that is, the ignition lock had been removed from its normal position on the right, or passenger's, side of the steering column. Officer Peil observed the ignition lock ¹ lying in plain view on the front passenger's floorboard, and he observed a hole approximately two inches in diameter in the steering column where the ignition lock would ordinarily be mounted. The officers promptly initiated an inquiry by radio, and determined that the Toyota had been stolen in Baltimore County approximately 48 hours earlier. ² The defendant, who was driving the Toyota, was arrested.

The defendant testified that he had borrowed the car from a friend a short time before he was arrested. He said that he was walking in the area of 725 George Street in Baltimore City shortly after 3:00 a.m. on March 26 when he came upon his friend, Alvin, who was sitting in the driver's seat of the Toyota. The defendant said he had known Alvin for some time, and had seen him driving the Toyota the previous day. According to the defendant, Alvin said the car belonged to his cousin. The defendant further testified that Alvin gave him permission to take the car to a convenience store "to buy some junk food." He said he was returning from the convenience store and had stopped to discharge two passengers from the rear seat when the police confronted him. He denied knowing that the car was stolen, explaining that: when he first entered the car from the driver's side the engine was running, and he had no occasion to shut it off; upon arrival at the convenience store he kept the motor running so that his passenger could enjoy the radio; he had never seen the ignition lock on the floor and did not know it had been "popped"; and, the interior lights were never on while he was in the Toyota. He said that when he stopped to let the passengers out, he observed Alvin standing about 10 to 15 steps away. He described what occurred after the police told him the car was stolen, as follows:

Defendant: I [said] this car isn't stolen. It's a friend of mine, my man Alvin right there.

Defense Attorney: And then what--what, if anything, did Alvin do at that time?

Defendant: That's when Alvin was walking away, when I was going toward him. He must have knew it was stolen, after I seen him walking.

Defense Attorney: Did you tell the police officer to go after Alvin?

Defendant: I told them that was his car, and they didn't pay no mind.

On cross-examination, the defendant refused to give Alvin's last name. However, he recanted when the trial judge signed an order finding him in contempt, and provided the name of Alvin Johnson. The defendant explained his initial reluctance to provide full identification by stating that he lived in an environment where one might be shot for identifying a friend as a criminal perpetrator.

The defendant was convicted, and appealed to the Court of Special Appeals. That court affirmed the conviction in an unreported opinion, holding that the missing witness instruction should not be given when it is probable that the witness would properly claim a privilege against self-incrimination if called. However, the court found that the instruction was proper in this case because Alvin Johnson would not have claimed the privilege. We granted certiorari, and we also affirm, but for reasons different than those relied upon by the intermediate appellate court.

II.

In Christensen v. State, 274 Md. 133, 134-35, 333 A.2d 45 (1975), we approved the general statement of the missing witness rule set forth in 1 Underhill, Criminal Evidence § 45 (rev. 6th ed. P. Herrick 1973):

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.

In Christensen, we held that the State's request for a missing witness instruction should have been denied because the State's evidence showed that the witness was an accomplice. We quoted with approval the statement from 1 Wharton, Criminal Evidence § 148 (13th ed. C. Torcia 1972) that:

No inference arises if the person not called as a witness by the defendant is a codefendant or an accomplice not presently on trial, or has already been convicted of the same offense as that for which the defendant is being prosecuted.

We explained that under the circumstances there present, it was probable that the witness, if called, would claim the privilege against compelled self-incrimination and refuse to testify. We said that because the State's evidence implicated the witness and the defendant as joint actors, the refusal of the witness to testify might well prove damaging to the defendant's case. Under those circumstances, we concluded that a person in the position of the defendant might very well decline to call the witness even though the witness's testimony, if given, would be favorable to the defendant. The factual predicate for an inference of unfavorable testimony having thus been undercut, we held the instruction should not have been given.

The defendant here suggests that the exception to the missing witness rule involving codefendants and accomplices exists only because those persons may be expected to refuse to testify if called. Building on this premise, he argues that the missing witness inference should not be available whenever it appears probable that the witness is entitled to, and will, invoke the privilege against self-incrimination. We agree that Alvin Johnson, if he exists and was involved, would more than likely have refused to testify. We conclude, however, that the defendant's view of the codefendant-accomplice exception to the missing witness rule is incorrect.

In Christensen, the mere fact that the witness would probably refuse to testify was not the dispositive factor. Rather, we were there concerned with the harm that would probably be done to the defendant's case if the accomplice invoked the privilege in the presence of the jury. As we shall point out, that potential for harm was not present here. Professor Wigmore has suggested that where the witness has a privilege of this kind, the witness should at least be summoned and asked, for he may waive the privilege. 2 Wigmore on Evidence § 286 at 201 (Chadbourne rev. 1979). Additionally, it should be kept in mind that the witness may be questioned out of the presence of the jury concerning the privilege, and if a privilege is claimed the trial judge may use that information to rule out a missing witness instruction. See State v. Crews, 208 N.J.Super. 224, 505 A.2d 198, 202-03 (1986). Unless the party against whom the inference might otherwise be drawn requests that the claim of privilege be repeated by the witness in the presence of the jury, there will be no need to inform the jury of what has transpired. Under appropriate circumstances, the jury may be instructed that the court has determined that the witness is unavailable, and that no inference may be drawn from the failure of either party to call that witness.

We do not suggest that the privileged witness must always be called in order to avoid the...