Sewell v. State

• Decision Date: 07 February 1977
• Docket Number: No. 525,525
• Parties: Scott SEWELL, the younger v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 691

34 Md.App. 691

368 A.2d 1111

Scott SEWELL, the younger v. STATE of Maryland.

No. 525.

Court of Special Appeals of Maryland.

Feb. 7, 1977.

Stuart Jay Robinson, Assigned Public Defender, Baltimore, for appellant.

Francis B. Burch, Atty. Gen., Bruce C. Spizler, Asst. Atty. Gen., William A. Swisher, State's Atty., Baltimore City and Stephen Sacks, Asst. State's Atty., Baltimore City, for appellee.

Submitted to MOYLAN, MENCHINE and MOORE, JJ.

MOYLAN, Judge.

This appeal by Scott Sewell, Jr., following his conviction by a Baltimore City jury, presided over by Judge Albert L. Sklar, of five separate violations of the narcotics laws, involves an intriguing variation on an old theme-the excuse for non-production under the 'Best Evidence' Rule.

Under that rule, sometimes referred to as the Original Document Rule, the best evidence of the contents of a writing is deemed to be the writing itself. Oral testimony or other secondary evidence of the terms of the writing may not be offered as a substitute for the original document itself unless the proponent can demonstrate onstrate an adequate reason for the non-production of the original. Instructive in this regard is McCormick, Law of Evidence (ist ed., 1954), Ch. 23, 'The Requirement of the Production of the Original Writing as the 'Best Evidence," § 201, 'Excuses for Non-production of the Original Writing-(a) Loss or Destruction,' p. 413:

'The professed purpose of the production of documents rule being to secure, not the writing at all hazards, but the best obtainable evidence of its contents, if the document cannot as a practical matter be produced, because of its loss or destruction, the production of the original is excused and other evidence of its contents is received. . . .

Loss or destruction may sometimes be provable by direct evidence but more often the only available method is circumstantial, usually by proof of search for the document and inability to secure it.'

The 'document' which could not be produced at the trial before Judge Sklar was a 2 4 piece of paper, seized from the appellant's premises during the execution of a search and seizure warrant, which paper gave measurements for the packaging of illicit drugs for street sales. It recited the number of grams which equal one 'bag,' and the quantity and quality of drugs that make what is known in the trade as a 'Baltimore quarter' and a 'New York quarter.' Because at the trial before Judge Sklar the State sought to utilize the oral testimony of Officer Jennings to establish the contents of this writing, it became necessary for the State to explain the non-production of the original document. The following evidence was offered in that regard:

(1) The appellant had gone to trial initially on these charges before a jury, presided over by Judge John R. Hargrove, on September 29, 1975. On October 1, 1975, the third day of that first trial, a mistrial was declared when it was brought to the attention of Judge Hargrove that the appellant had, in the presence of the jury, eaten a piece of the evidence. Both Officer Jennings and the assistant prosecutor, Nelson Stewart, noticed that the piece of paper now in issue was missing. Officer Jennings had observed the appellant looking at the piece of paper. When Officer Jennings searched the appellant's books and papers at the trial table, the appellant, after being advised as to what was missing, exclaimed, 'Oh, that piece of paper, I ate it.'

(2) Two of the jurors at the first trial observed the appellant look at a piece of paper in the State's files 'a couple of times' and then saw him slide it between 'his papers.' The jurors sent a note to Judge Hargrove, as a result of which the mistrial was declared.

The above evidence was initially proffered to the court out of the presence of the jury. The appellant's attorney, after initially objecting to the secondary evidence, withdrew his objection to the secondary evidence. He later objected however, 'to the entire procedure.' Judge Sklar permitted the State to offer the testimony as to the theft and destruction of the document by the appellant for two distinct and independent purposes:

(1) To explain the non-production of the original, and

(2) As evidence of the appellant's consciousness of guilt.

When the evidence was produced, the appellant moved for a mistrial. The motion was denied and that denial is the basis for his first contention.

We hold that Judge Sklar was correct in his ruling for either of two reasons. It is clear that before secondary evidence is admissible, it must be shown that the original was lost or destroyed. Barranco v. Kostens, 189 Md. 94, 54 A.2d 296; Leaman v. League Lumber Company, 239 Md. 258, 211 A.2d 296; Anderson v. State, 9 Md.App. 532, 538-539, 267 A.2d 296; Wentworth v. State, 29 Md.App. 110, 122, 349 A.2d 421. As the Court of Appeals pointed out in Forrester v. State, 224 Md. 337, 349, 167 A.2d 878, 884:

'The best evidence of which the case is capable must be produced, and secondary, or inferior, evidence is only admissible after a proper foundation has been laid, showing good and sufficient reasons for the failure to produce the primary evidence.' (citations omitted) (emphasis supplied).

We hold that the evidence was also admissible substantively to show the appellant's 'consciousness of guilt.' As was noted by Dean Wigmore in 1 Wigmore on Evidence (3rd ed., 1940), § 173:

'The commission of a crime leaves usually upon the consciousness a moral impression which is characteristic. The innocent man is without it; a guilty man usually has it. Its evidential value has never been doubted. The inference from consciousness of guilt to 'guilty' is always available in evidence. It is a most powerful one. . . .' (emphasis supplied)

Various modes of conduct have been held to be tacit admission or evidence of the consciousness of guilt. Among them are flight from justice, including resistance or concealment, Tasco v. State, 223 Md. 503, 165 A.2d 456; Clay v. State, 211 Md. 577, 128 A.2d 634; the giving of false statements, Burko v. State, 19 Md.App. 645, 313 A.2d 864; attempts by the accused to prevent a witness from testifying, State v. Hicks, 535 S.W.2d 308 (Mo.App.1976); and the refusal to provide an exemplar for comparison purposes, United States v. Franks, 511 F.2d 25 (6th Cir. 1975).

The destruction of evidence by the accused has always been recognized as indicative of 'consciousness of guilt.' Scarborough v. State, 3 Md.App. 208, 217, 238 A.2d 297.

Under the circumstances, the questioned testimony was clearly admissible and the motion for a mistrial was properly denied.

The appellant raises a second contention, questioning the propriety of the judge's instructions on the subject of both flight and the destruction of evidence as indications of the 'consciousness of guilt.' The instruction was, in pertinent part:

'There has been testimony here, of course, that at the time of the raid by the officers that the defendant left through a window from the third floor onto, I believe, the roof of the second floor. You may regard that as flight or an attempt to flee. If you regard that action as flight, flight alone is not controlling as to the guilt of the defendant, but it is a factor that may be considered by you in determining guilt as tending to show intent or consciousness of guilt.

Similarly, you have heard the testimony in this case that at a prior trial the defendant is alleged to have taken the two by four, or three by four or five inch piece of paper allegedly containing figures and other writing on it. That, of course, is denied by the defendant. If you find that it did not occur then, of course, it should not carry any weight in reaching your verdict. If you find, however, that it did occur, then that alone is also not controlling, but it is also a factor that may be considered by you in determining guilt as tending to show intent or consciousness of guilt. That is the only area in which either flight or that activity, if you find that action did occur, that's up to you to determine whether you find it occurred or whether you find it didn't occur, but if you find it did occur, then it is only to be considered by you in that limited area.'

In view of our discussion above, it follows ineluctably that the instruction was perfectly correct. See also Harney v. United States, 306 F.2d 523 (1st Cir. 1962), cert. den. sub nom. Lawton v. United States, 371 U.S. 911, 83 S.Ct. 254, 9 L.Ed.2d 171; United States v. Gottfried, 165 F.2d 360 (2nd Cir. 1948), cert. den. 333 U.S. 860, 68 S.Ct. 738, 92 L.Ed. 1139; Robinson v. State, 43 Ala.App. 111, 180 So.2d 282 (1965); People v. Weiss, 50 Cal.2d 535, 327 P.2d 527 (1958); People v. Kendall, 111 Cal.App.2d 204, 244 P.2d 418 (1952), cert. den. 344 U.S. 880, 73 S.Ct. 176, 97 L.Ed. 681; People v. Fiorito, 413 Ill. 123, 108 N.E.2d 455 (1952); State v. Broadhurst, 184 Or. 178, 196 P.2d 407 (1948), cert. den. 337 U.S. 906, 69...