Christensen v. State

Lowe, J., delivered the opinion of the Court. In 1722 a chimney-sweeper’s boy found a jewel and took it to a jeweler for appraisal. The jeweler, having declined to return it to the boy, was sued in trover. Instructing the jury how they should arrive at the value of the unreturned jewel, “.. . the Chief Justice directed the jury that unless the defendant did produce the jewel and show it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages; which they accordingly did.” Armory v. Delamirie, 1 Strange 505.

From this practical application of simple logic to the rules of fair play, we have evolved the missing evidence, or missing witness rule, as the case may be. That rule broadly stated holds that “The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most rational inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party.” 2 Wigmore, Evidence, § 285 (3rd Ed. 1940). The missing witness aspect of this rule, with which we are ⁴³⁰ singularly preoccupied here, has been applied in criminal cases by the overwhelming weight of authority. See 2 Wigmore, supra, § 289; United States v. Welp, 446 F. 2d 867 ; United States v. Beekman, 155 F. 2d 580 ; United States v. Walker Co., 152 F. 2d 612 ; State v. Hassard, 365 P. 2d 202 ; State v. Elliott, 28 A. 2d 597 ; Anderson v. Commonwealth, 156 S.W.2d 860 ; Annot., 5 A.L.R.2d 893 .

There is a dearth of authority concerning the rule’s applicability in criminal cases in Maryland. When recognized at all, this issue usually receives only a peripheral glance. See, e.g., Nelson v. State, 5 Md. App. 109 . In the jurisdictions where the missing witness rule has been applied more frequently, one of several conditions precedent to the raising of the unfavorable inference is that the witness be accessible to the person against whom the inference is sought. 1 Wigmore, supra, § 286 notes that one of these conditions mentioned or assumed in “almost all cases” is that the person “... must be within the power of the party to produce.

This is unquestioned.” The Supreme Court in 1893 articulated the rule along with Wigmore’s basic condition even more restrictively. The witness must not only be accessible to the party but peculiarly so: “The rule even in criminal cases is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.” Graves v. United States, 150 U.S. 118, 121 . The Court of Appeals for the District of Columbia in Conyers v. United States, 237 A. 2d 838 , citing Pennewell v. United States, 353 F. 2d 870 , went even further: “The corollary proposition that no presumption arises from the failure of one party to call a witness ⁴³¹ if that witness is equally available to both parties is well established in this jurisdiction.” The case before us was heard by a jury in the Montgomery County Circuit Court, presided over by Judge Ralph G. Shure. The Appellant was convicted of attempted rape primarily upon the testimony of the prosecuting witness together with circumstantial evidence.

Appellant’s defense was that after he picked up the witness who was seeking a ride from Georgetown to her home in Richmond, Virginia, she became quite responsive to his advances. Although the prosecuting witness left the Appellant’s car at one time during the evening, she was picked up again a little later while hitchhiking. Appellant claims she made implied offers of sexual favors to Appellant and a friend accompanying him, in exchange for a ride to Richmond. Both Appellant and the prosecuting witness spoke of the third occupant of the automobile who was present throughout the entire episode.

Throughout his case, Appellant meticulously avoided direct reference to, or identification of, the obviously absent potential witness. On the other hand, the Assistant State’s Attorney continuously raised the spectre of his absence by repeatedly and over prolonged periods questioning Appellant about his associate. The State not only asked who he was, but where he lived, and what efforts Appellant or his attorney had made to find him and produce him at trial. Appellant pointed out that he had been incarcerated for all but approximately one month before trial and that he had no way of knowing what his attorney’s efforts had been.

He acknowledged that his own efforts had been minimal during the period he was not in jail prior to trial. After all testimony had been taken and each side had closed its case, counsel and court conferred upon proposed instructions. Counsel for Appellant requested and was denied an instruction that no inference be permitted from the absence of the witness. “MR. BRAULT: Your Honor, the State has gone to great length about the fact that this Jessie Paine ⁴³² was not produced by the defense, and I can tell Your Honor that I don’t think it necessary and it is not my practice to take the stand myself or to ask any of my associate counsel to take the stand, but we were unable to find this man.

I am not saying that we can do it with the precise dedication or ability that the police can. I don’t have it at my command, seven hundred and fifty trained investigative personnel, like the State’s attorney, but with what means are available in my office, we did check. I can tell the Court what we found out if the Court wants to know, but we were unable to find him, but I don’t think it is our duty to produce him, and I would like the Court to instruct the jury there is no duty on the defendant to produce that witness and no inference is to be drawn from the fact that he wasn’t produced.” The court properly responded that “They [the jurors] are entitled to draw an inference from the absent witness.” The decision of Appellant’s counsel not to testify or provide testimony was one of many judgment calls trial counsel are compelled to make throughout a trial. It was undoubtedly made more difficult by the reluctance of Maryland courts to sanction counsel’s serving as a substantive witness.

See, e.g., Parlett Ford, Inc. v. Sosslau, 19 Md. App. 320, 329 . Notwithstanding “. . . the practice is looked on with disfavor,” an exception is permitted “in unusual circumstances.” Bris Realty v. Phoenix, 238 Md. 84, 90 . In Snyder v. Hammer, 180 Md. 690 (reported in full in 23 A. 2d 653, 655 ), an exception is recognized “. .. when the, need of so doing has not been forseen.” The Code of Professional Responsibility, a part of the Maryland Rules, Md. Rule 1230, states: “If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall ⁴³³ withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify .... [a]s to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.” DR 5-102 (A), 5-101 B (4). A substantial amount of time was consumed by the State in cross-examining Appellant as to his efforts and his counsel’s efforts to locate the missing witness.

Consequently, Appellant’s counsel had to decide whether or not to testify or permit an associate to testify as to the diligent efforts they had used to attempt to locate Jesse Paine. That decision was necessarily his own and the onus of its result could not be passed to the trial judge by sharing with him, in camera, a detailed account of those efforts. This he attempted to do, however, by reciting the efforts to the judge on the record, out of the hearing of the jury. “MR. BRAULT: I can see this is going to get into some sort of a problem, but we learned through inquiry from Mr. Christensen’s former wife, he told us at the jail she might know where he was, because we found no listing on Lawrence Avenue for anybody