Allen v. State

EYLER, JAMES R., J. Shawn Donte Allen, appellant, was convicted by a jury in the Circuit Court for Baltimore City of possession of cocaine with intent to distribute and related charges. On appeal, appellant challenges the circuit court’s instruction to the jury with respect to “anti-CSI effect” and the court’s replacement of one of the jurors with an alternate. A sub issue is whether recent Court of Appeals decisions holding that, under certain circumstances, “anti CSI effect” instructions are constitutionally improper, apply to this case. We shall hold that the decisions do apply and, based on an erroneous jury instruction, reverse appellant’s convictions.

We shall not reach appellant’s second contention. Factual and Procedural Background According to Baltimore City Police Detectives Craig Jester and Paul Geare, on July 23, 2008, they observed from their unmarked vehicle two individuals in a parked pickup truck pull a closed bag out of the truck’s center console and place it “in the center of the front area of the truck.” Both occupants then handled the bag. When the truck began moving, the detectives followed it in their vehicle. After the detectives activated their vehicle’s emergency lights, the truck accelerated, and the truck’s passenger threw a bag out of the window.

After the truck stopped, the detectives took into custody appellant, who was the driver of the truck, and Jamal Douglas, the truck’s passenger, and then recovered the bag. The bag contained a digital scale and eight smaller bags, each of which, it was later determined, contained several ounces of cocaine. Beginning on February 4, 2011, appellant and Douglas were tried together for possession of cocaine with intent to distribute and related charges. Detectives Jester and Geare were the only witnesses, both called by the State.

During cross examination of Detective Jester, counsel for appellant asked, “did you or your partner request any fingerprint analysis of ⁷⁰⁴ anything that was in that closed bag?” Detective Jester said that he did' not. Counsel then asked “[d]id you request any DNA evidence of what was found in those two closed bags?” Detective Jester again answered that he did not. On redirect examination by the State, Detective Jester testified that it was not common practice to conduct fingerprint analysis or DNA tests on evidence like the recovered narcotics. After the close of evidence, the State requested a jury instruction on “specific investigative techniques.” The court heard argument and stated it would give the requested instruction.

The court instructed the jury that [djuring the trial you’ve heard testimony and you may hear argument of counsel that the State did not utilize a specific investigative technique or techniques or scientific tests, I instruct you that there’s no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case. During closing argument, The State told the jury that it might hear some defense complaints about there not being any DNA or there not being any fingerprints. Well, what’s the point? This isn’t a who done it.

You ask for DNA and fingerprints when you don’t [know] whose it might be. We know whose cocaine this was because we know Detective Geare and Detective Jester told us it was in between the Defendants and they both had their hands all over it. Counsel for appellant also discussed the issue during closing argument, stating: [W]e raise the issue of DNA and prints because the State has requested and did receive a question about scientific tests. So, it’s not what they proved, but what didn’t they prove or what could they have proved in this case.

Very simply, we’d have a evidence control, we’d have a chemist, fingerprint experts, could have absolutely subjected all of this evidence, especially, especially these plastic bags for DNA and for prints. Never done. Now, why wasn’t it done? I’ll tell you why it wasn’t done.

If you ⁷⁰⁵ refer to the testimony of the detectives who are here today, present, they make observations and they were crystal clear that they could see into a console area what was in that console area. The remainder of defense counsel’s closing argument focused on the reliability of the State’s witnesses, the accuracy of the detectives’ observations, the recovery of the physical evidence, the criminal agency of his client, and other matters. During the trial, the State moved to strike one of the jurors after the juror was seen waving and smiling to someone in the courtroom audience. When questioned by the court, the juror stated she saw someone in the courtroom that she knew who “used to mess with, used to hang with [her children’s] father.” She also said that it would not affect her ability to serve impartially as a juror.

The court questioned some spectators who were sitting in the area of the courtroom where the juror had waved, but none of the individuals acknowledged any familiarity with any of the jurors. The juror in question then informed the court that the person to whom she had waved was no longer in the courtroom, at which point the court granted the motion to strike, over defense objection, and replaced the juror with an alternate. Later in the trial, the court conducted additional inquiries aimed at divining to whom the stricken juror had waved, although the record does not reflect a definite identification of that person. On February 7, 2011, the jury convicted appellant of all charges.

This timely appeal followed. Questions Presented Appellant presents the following two questions: 1. Was [appellant’s constitutional right to a fair trial violated by the trial courts’s instruction to the jury that there was no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case? 2. Did the trial court abuse its discretion in removing a juror? ⁷⁰⁶ We shall answer the first question in the affirmative, and as we shall reverse appellant’s convictions on that basis, we decline to address the second question.

Discussion On appeal, appellant contends that the “anti-CSI” jury instruction was improper under the Court of Appeals’ holding in Atkins v. State, 421 Md. 434 , 26 A.3d 979 (2011). 1 Noting that the instruction propounded in this case was identical to the one challenged in Atkins , appellant argues that the instruction was improper, and thus, his conviction must be reversed. The State, while conceding that “[w]ith the hindsight of Atkins and Stabb [v. State, 423 Md. 454 , 31 A.3d 922 (2011) ], it may have been error” for the court to issue the instruction challenged here, asserts that those cases should be applied only prospectively and not to convictions, like appellant’s, rendered before those cases were decided. 2 In the alternative, the State argues that, even if the instruction was in error, the error was harmless due to the “overwhelming” evidence against appellant presented at trial. The primary issue before us is whether the holdings in Atkins and Stabb are to be applied to cases pending on direct appeal or are to be applied entirely prospectively. Before discussing that issue, however, we shall address whether the instruction, based on the record in this case, is improper under Atkins and Stabb, assuming the decisions are applicable.

The State stops just short of conceding the issue. Prior to appellant’s trial, this Court had decided Evans v. State, 174 Md.App. 549 , 922 A.2d 620 , cert. denied, 400 Md. 648 , 929 A.2d 890 (2007), a narcotics case similar to the case before us. In that case, we examined a similar jury instruction. Evans was convicted of violating controlled dangerous ⁷⁰⁷ substance laws.

A detective, who conducted an undercover narcotics purchase, testified as the sole eyewitness to the transaction. Id. at 555, 922 A.2d 620 . Defense counsel, in cross examining the detective, asked why the police had not employed “specific investigative techniques” during the operation. Id. at 562 , 922 A.2d 620 .

During closing argument, defense counsel “stressed the lack of the State’s evidence to demonstrate a ‘cross-check of reliability,’ ” and told the jury: Now, you have a right to assess the credibility of this detective. We understand that. But besides what he said and however you interpret what he said and how he said it and what areas he may have retrieved it from besides that, there are no other real ways to prove this, because the arrest team, the lack of any video surveillance, whatever, none of that, absolutely none of that exists in this case. Id. at 562-563 , 922 A.2d 620 (emphasis added).

Counsel for the co-defendant argued, in part: Now, I asked a number of questions, because I can’t believe that people would get convicted on a case like this or even charged on a cases like this, but i asked—and [appellant’s counsel] used the term “cross-checks”—but I asked about certain things because it makes sense to me that if you’re going to convict somebody of felonies, of serious crimes, you’ve got to have some evidence. So how about a videotape or an audiotape?.... You have a situation where there are absolutely no scientific tests that implicate my client in any way. There’s no audio.

There’s no video. There’s no fingerprints. There is nothing. Id. at 563-64 , 922 A.2d 620 (Emphasis added.

Footnote omitted.) We noted that, while counsel for Evans’ co-defendant objected to the jury instruction at issue, Evans’ counsel failed to do so. Id. at 566 , 922 A.2d 620 . We also explained, on the merits, that the “robust and vehement closing arguments of [defense] counsel regarding the failure to employ audio or ⁷⁰⁸ video surveillance equipment and the lack of any other investigative or scientific evidence produced by the State warranted giving the instruction.” Id. at 570 , 922 A.2d 620 . The Court of Appeals addressed this type of jury instructions in Atkins, 421 Md. 434 , 26 A.3d 979 .

Atkins was convicted of second degree assault. The evidence included a knife recovered from his home that the State contended was used in the assault. There was no testimony linking the knife to the crime, and the knife was not subjected to “any scientific or forensic testing.” Id. at 439 , 26 A.3d 979 . On “cross-examination of the police officer who found the knife at issue in Atkins’s home, defense counsel questioned whether forensic testing could have been done on the knife introduced into evidence.” Id. at 440 , 26 A.3d 979 .

The questioning on cross-examination “highlight[ed] the lack of evidence connecting the knife to the crime[.]” Id. Before closing arguments, the trial court granted, over defense objection, the State’s requested jury instruction: During this trial, you have heard testimony of witnesses and may hear argument of counsel that the State did not utilize a specific investigative technique or scientific test. You may consider these facts in deciding whether the State has met its burden of proof. You should consider all of the evidence or lack of evidence in deciding whether the defendant is guilty.

However, I instruct you that there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case. Your responsibility as jurors is to determine whether the State has proven based upon the evidence the defendant’s guilt beyond a reasonable doubt. Id. at 441-442 , 26 A.3d 979 (emphasis in original). Atkins appealed, alleging that the court improperly commented on the evidence.

Id. at 442 , 26 A.3d 979 . Relying on our decision in Evans , in an unreported opinion, we affirmed. In a majority opinion written by Judge Clayton Greene, Jr., the Court of Appeals reversed, distinguishing Evans without overruling it. Id. at 449, 26 A.3d 979 .

The Court considered ⁷⁰⁹ our discussion in Evans to be dicta, stating that “[djespite holding that the issue was waived, the intermediate appellate court engaged in a legal analysis of the issue, which was therefore not authoritative or essential in the determination of the case.” Id. The Court explained further that “unlike the case at hand, the missing evidence in Evans , i.e., photographic or video evidence of the drug transaction, was not of critical importance to the case,” because the State relied on eyewitness testimony. Id. Consequently, in Evans the “failure of police to provide additional evidence was therefore not a crucial issue, despite the defense argument that such evidence could possibly have served to bolster the State’s case in order to establish guilt beyond a reasonable doubt.” Id. at 449-450, 26 A.3d 979 .

Additionally, referring to Evans , the Court of Appeals noted the “robust and vehement closing argument,” the cross examination as to the failure of the police to record the transaction, and defense counsel’s distortion of the law, observed that in the case before it, the cross examination was brief, and lack of evidence was not argued in closing. Id. at 451, 26 A.3d 979 . After distinguishing Evans , the Court explained that the “instruction did not adequately protect Atkins’s right to a fair trial because the instruction invaded the province of the jury and constituted commentary on the weight of the evidence, which comment was improper.” Id. at 453, 26 A.3d 979 . The Court described the constitutional underpinnings of the right to trial by jury, pointing to Articles 5, 21, 23, and 21 of the Maryland Declaration of Rights and the Constitution of the United States, Amendments VI and XIV.

Atkins at 443, 26 A.3d 979 . The Court further explained that “a defendant has the right to be tried by a fair and impartial jury, Md. Dec. of Rts. Art. 21, and the ‘jury is the exclusive judge of the fact[s]’ in a case.” Id. (citing Gore v. State, 309 Md. 203, 210 , 522 A.2d 1338 (1987)) (citing Md. Dec. of Rts.

Art. 23)). Accordingly, the law “precluded] any instruction ‘when [it] operate^], ultimately, to relieve the State of its burden of persuasion in a criminal case, i.e., its burden of proving beyond a reasonable doubt all the facts necessary to constitute the ⁷¹⁰ offense.’” Id. (citing State v. Evans, 278 Md. 197, 207 , 362 A.2d 629 (1976). In reversing, the Court emphasized that “our conclusion that the instruction as given was invalid is based on the particular facts in this case, and we do not hold that an investigative techniques instruction would never be proper.” Id. at 454, 26 A.3d 979 .

In that vein, the Court also stated that we do not hold that an investigative or scientific techniques instruction would be improper under different circumstances, so long as the State is properly held to its burden, and the instruction regarding what the State must introduce in proving its case is properly related to the reasonable doubt standard. Id. at 438 , 26 A.3d 979 . (Footnote omitted.). The Court called on the Maryland Criminal Pattern Jury Instruction Committee to draft a model jury instruction, balancing the State’s burden of proof with the right of the State to pick the evidence it wishes to introduce.

Id. In his concurring opinion, Judge Glenn T. Harrell, Jr. referred to the inconclusive nature of the scholarly research with respect to the existence of a CSI effect. He suggested, inter alia, that defense counsel may comment on the lack of forensic evidence or the failure of the police to use certain scientific techniques, but if the defense implies that the State is required to utilize specific techniques or that the absence of forensic evidence weighs in favor of the defense, an anti CSI curative instruction may be proper. Id. at 473 , 26 A.3d 979 .

In an opinion written by Judge Harrell, the Court of Appeals revisited the issue in Stabb, 423 Md. 454 , 31 A.3d 922 . Stabb was convicted of third-degree sexual assault and second degree assault. Id. at 457 , 31 A.3d 922 . After his convictions, Stabb appealed to this Court.

In an unreported opinion filed before the decision in Atkins , based on our Evans holding, we affirmed. The Court of Appeals granted Stabb’s petition for writ of certiorari. ⁷¹¹ The victim, who was a minor, testified. Id. A social worker also testified for the State, and on cross examination, defense counsel asked why the witness had not referred the victim for a Sexual Assault Forensics Exam.

The witness responded, in part, that there was no indication of penetration and no possibility of the continued existence of physical evidence in view of the lapse of time between the incident and the witness’s involvement. Id. The State requested that the court instruct the jury that [djuring this trial, you have heard testimony of witnesses and may hear argument of counsel that the State did not use a specific investigative technique or scientific test. You may consider these factors in deciding whether the State has met its burden of proof.

You should consider all the evidence or lack of evidence in deciding whether a defendant is guilty. However, I instruct you that there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case. Your responsibility as jurors is to determine whether the State has proven based upon all the evidence the defendant’s [sic] guilty beyond a reasonable doubt. Id. at 460, 31 A.3d 922 .

Defense counsel objected, arguing, inter alia, that if the Court determines after I gave my closing argument that I gave a vigorous—then I would ask the Court to consider [the challenged instruction] but to give it prior to closing argument and without making any conclusion that I made a robust or vehement argument and basically harped on that fact, I would say its [sic] improper. Id. at 461 , 31 A.3d 922 . The court granted the instruction. In closing argument, defense counsel focused heavily on the State’s reliance on a single child witness and the inconsistent recollections of the investigating officers and the State’s other witnesses.

She also covered briefly the motive of [the victim’s mother and grandmother] to encourage [the victim] to implicate Stabb, ⁷¹² the possibility of an alternative assailant, Stabb’s alibi witnesses, and the lack of physical evidence. Id. at 463 , 31 A.3d 922 . The Court, while again acknowledging that it was not declaring anti-CSI jury instructions improper per se, concluded that, on the facts of the case before it, the court abused its discretion in providing “essentially a preemptive jury instruction that there was ‘no legal requirement for the State to utilize any specific investigative technique or scientific test to prove its case.’ ” Id. at 463 , 31 A.3d 922 . Stabb contained a discussion, similar to that in Atkins , explaining the constitutional bases for the “grant to criminal defendants [of] the right to a fair trial, which includes a requirement that trial judges refrain from making statements that may influence improperly the jury.” Stabb, 423 Md. at 463 , 31 A.3d 922 .

The Court explained that “Article 23 of the Maryland Declaration of Rights states that ‘the Jury shall be the Judges of the Law as well as of fact ...,’ which limits the trial court from giving jury instructions that comment on evidence properly before the jury.” Id. at 463-464 , 31 A.3d 922 (citations and quotations omitted). In Stabb , Judge Harrell again referred to the inconclusive nature of the scholarly research on the CSI effect and noted that it was just as inconclusive as when Atkins was decided. Id. at 470 , 31 A.3d 922 . The Court observed that, unlike in Atkins , the missing forensic evidence was not critical.

Moreover, although defense counsel commented on the lack of physical evidence, the overwhelming majority of her argument focused on the State’s reliance on a single child witness, conflicting statements of the State’s other witnesses, motive of [the victim’s mother and grandmother] to influence [the victim’s] statements, Stabb’s alibi, and possibility of an alternative assailant. Nonetheless, the lack of scientific evidence was an integral part of the defense’s theories. Another problem with the “anti-CSI effect” jury instruction in the present case is that it was given preemptively, i.e., ⁷¹³ before any explicit argument by the defense on the absence of DNA or fingerprint testing of [the victim] or her clothing. Id. at 470-471 , 31 A.3d 922 .

Additionally, Stabb’s defense argued properly and without undue emphasis the lack of corroborating physical evidence of the crime, and questioned [the State’s witnesses] as to the likelihood of the existence of such evidence and why a SAFE was not performed, but did not ‘harp’ impermissibly on the lack of physical evidence in its case-in-chief or during closing arguments. In fact, the main thrust of Stabb’s defense rested on an alibi theory. His closing arguments focused also on numerous ways the defense contended that the State had failed to satisfy its reasonable doubt burden, only one of which was its failure to perform a SAFE. When the defense did allude to the lack of corroborating physical evidence, its comments were ‘legitimate, brief, and reasonable,’ as in Atkins .

Id. at 471 , 31 A.3d 922 . The Court, on the basis just stated, distinguished the case from Atkins and Evans. Id. Under those circumstances, the Court explained, it was up to the jury to weigh the absence of physical evidence corroborating Stabb’s alleged assault on [the child victim], Stabb’s alibi defense, and the testimony of the other defense witnesses.

Further, Stabb did not advance a “missing evidence” argument that implied that “missing” evidence would favor him; rather, counsel alluded to the absence of