Cost v. State

ADKINS, J. Petitioner Ashanti Cost was convicted of reckless endangerment for an alleged stabbing attack on Michael Brown, a fellow inmate at the Maryland Correctional Adjustment Center (“MCAC”). During the course of investigating the incident, the State sealed Brown’s cell and took several items of physical evidence into custody. Apparently, these items were ³⁶⁴ later disposed of by the State, rather than being preserved as evidence for use in Cost’s trial. At trial, Cost sought a jury instruction regarding the destruction of this evidence, but his request was denied.

Additionally, after his conviction, Cost received records indicating that Brown had a history of inflicting stab wounds upon himself. Cost unsuccessfully argued that this information should have been disclosed as material under Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963). We granted certiorari to consider the following two questions: 1. Did the lower court err in holding that the trial court did not err in failing to instruct the jury on spoliation because such an instruction is never required in criminal cases? 2.

Did the State violate its obligation under [Brady ], when it failed to disclose that the victim had a history of self-inflicted superficial stab wounds while in State custody? We shall hold that the trial court erred by refusing Cost’s proposed instruction, vacate Cost’s conviction, and remand for a new trial. Because we so hold, we need not reach the second question presented. FACTS AND LEGAL PROCEEDINGS Petitioner Ashanti Cost is an inmate at the Maryland Correctional Adjustment Center, a so-called “Supermax” prison, located in Baltimore City.

At the time of the events giving rise to this appeal, Cost had recently been transferred to MCAC from another facility in Hagerstown. Cost alleges that this transfer to the more restrictive facility was retaliation for Cost’s testimony before a Senate committee investigating the death of a Hagerstown facility inmate at the hands of prison guards. According to the State, Cost attacked another MCAC inmate, Michael Brown, on September 28, 2005. Brown was detained at MCAC as a material witness for the federal government in a separate case.

Cost was charged with assault in the first degree, assault in the second degree, openly ³⁶⁵ wearing and carrying a deadly weapon with intent to injure, and reckless endangerment. At the time of the alleged attack, both Cost and Brown were “locked down” in their cells for twenty-three hours per day, except for medical escorts and one hour of “outside activity.” This is standard practice in many “Supermax” prisons such as MCAC. At Cost’s trial in the Circuit Court for Baltimore City, Brown testified that he had been a federal informant for approximately six years, and that Cost had previously threatened to kill Brown because he was an informant. According to Brown, Cost threw feces into Brown’s cell through cracks in the cell door, and issued a vulgar threat against Brown.

Brown further testified that Cost grabbed Brown’s clothing through a food slot in the cell door, pulled him close to the door, and stabbed him in the abdomen with an approximately six-inch long metal weapon “like an ice pick.” Brown claimed that the wound “was bleeding a lot ... running like water.” Brown testified that he was admitted to Johns Hopkins Hospital and treated for “internal bleeding, dizziness, a lot of things like that.” At trial, Cost pointed to a number of facts that he alleged cast doubt on Brown’s version of events. To begin with, Cost had been searched before being allowed to leave his cell, and no weapons or other contraband were found on his person. After the attack, the entire unit area was searched for weapons, and none were recovered. Cost also challenged the alleged severity of Brown’s injury, drawing support from Brown’s hospital discharge forms.

In particular, Cost relied on medical records stating that Brown’s alleged ice pick wound was “approximately 1 inch long [and] only penetrated the skin” and was “approximately 3 millimeters in length.... ” Brown’s recommended course of treatment was “over-the-counter pain relief such as Tylenol or ibuprofen[,]” which Cost argued cast doubt on the severity of the injury. More significantly, Cost focused on a series of unusual evidence and chain of custody issues that arose relating to the condition of Brown’s cell. At trial, the State introduced as ³⁶⁶ evidence photographs of Brown’s cell taken the evening following the alleged attack. The photographs show significant red staining on the floor of the cell, which Brown identified as his blood. 1 Brown also testified that the photographs showed a towel which he had used to try to stop his abdominal bleeding.

Major Donna Hansen, who was MCAC’s investigative officer at the time of the attack and who took the photographs, testified that when she entered Brown’s cell she observed “a large amount of what appeared to be blood and smelled like blood on the floor and on the mattress[,]” as well what she believed to be several towels lying on the floor. She further testified that she did not collect any towels or bedding as evidence, as that would be the responsibility of the Department of Public Safety and Correctional Services’s Internal Investigative Unit (“IIU”). Hansen testified that on the night of the attack, she placed a call to Detective Bob Fagen, the IIU duty officer on the day in question. There is some uncertainty as to precisely what events followed Hansen’s alleged call to Detective Fagen.

According to Detective Karen Griffiths, a detective with the IIU at the time of these events, she received a call from Hansen on October 3, 2005, five days after the attack. Griffiths testified that Hansen said “that she had a cell sealed and wanted to know if [IIU] would release that cell.... ” According to Griffiths, this was the first time she became aware of the attack. Griffiths further testified that when she queried her supervisor about the case, it was assigned to her. After the assignment, Griffiths went to MCAC to pursue her investigation.

She did not, however, examine Brown’s cell, because it had been cleaned. In addition, no physical evidence had been preserved from the cell—neither towels nor bedding had been stored for Griffiths’s review. Griffiths testified that she did not tell Hansen to unseal the cell; those instructions apparently issued from Griffiths’s supervisor. According to Griffiths, the case had actually initially been “re ³⁶⁷ ferred back to Major Hansen, who is a trained investigator, and [IIU was] not going to handle that crime scene.” Brown’s clothing from the night of the alleged attack, which Hansen had collected, was not accepted by IIU’s crime lab “because of the age and the lack of chain of custody.” The absence of the physical evidence from Brown’s cell, the contents of which had apparently been disposed of by MCAC staff, led Cost to request a jury instruction regarding the destruction of evidence by the State.

Specifically, Cost requested the following instruction: You have heard the testimony that the Division of Correction, a State agency, has destroyed evidence in this case by failing to preserve a crime scene and failing to retain the bed linens that were seized at the scene. If this evidence was peculiarly within the power of the State, but was not produced and the absence was not sufficiently accounted for or explained, then you may decide that the evidence would have been formable [sic] 2 to the defense. This proposed instruction appears to be adapted from the Maryland Criminal Pattern Jury Instruction (“MPJI-CR”) on missing witnesses. See MPJI-CR 3:29. 3 The State objected to Cost’s proposed instruction on the grounds that there had been no direct testimony that the physical evidence from Brown’s cell had been destroyed. 4 Cost responded that the ³⁶⁸ State “had the duty to preserve that crime scene for [Griffiths] to get there to investigate it[,]” and that the cell “was certainly in control of the State and nobody else” when Griffiths’s supervisor told Hansen that the cell could be unsealed.

The trial court ultimately refused to give the requested instruction, “in the absence of any testimony to support that the State deliberately destroyed the evidence.... ” The jury ultimately acquitted Cost of assault in the first degree, assault in the second degree, and openly wearing and carrying a deadly weapon with intent to injure, but convicted him on the charge of reckless endangerment. Cost was sentenced to five years incarceration, to be served consecutive to his existing prison term. 5 On appeal, the Court of Special Appeals affirmed the judgment of the trial court with respect to refusing to instruct the jury on the missing evidence. In an unreported opinion, the intermediate appellate court held that “the State’s failure to preserve evidence, or the actual destruction of evidence, may .... give rise to inferences against the State----” It further held, however, that a defendant is not entitled “to an instruction where that instruction relates to permissible inferences of fact [,]” as opposed to an instruction on governing law, and affirmed Cost’s conviction. We granted Cost’s Petition for a Writ of Certiorari.

Cost v. State, 411 Md. 355 , 983 A.2d 431 (2009). STANDARD OF REVIEW We review whether a trial court abused its discretion in refusing to offer a jury instruction under well-defined standards. A trial court must give a requested jury instruction where “(1) the instruction is a correct statement of law; (2) the instruction is applicable to the facts of the case; and (3) the content of the instruction was not fairly covered elsewhere ³⁶⁹ in instructions actually given.” Dickey v. State, 404 Md. 187, 197-98 , 946 A.2d 444, 450 (2008); see also Md. Rule 4-325(c). We review a trial court’s decision whether to grant a jury instruction under an abuse of discretion standard.

See, e.g., Thompson v. State, 393 Md. 291, 311 , 901 A.2d 208, 220 (2006). On review, jury instructions [M]ust be read together, and if, taken as a whole, they correctly state the law, are not misleading, and cover adequately the issues raised by the evidence, the defendant has not been prejudiced and reversal is inappropriate. Reversal is not required where the jury instructions, taken as a whole, sufficiently protected] the defendant’s rights and adequately covered the theory of the defense. Fleming v. State, 373 Md. 426, 433 , 818 A.2d 1117, 1121 (2003).

Thus, while the trial court has discretion, we will reverse the decision if we find that the defendant’s rights were not adequately protected. See, e.g., General v. State, 367 Md. 475 , 789 A.2d 102 (2002) (trial court abused its discretion in refusing to give a “mistake of fact” instruction); Smith v. State, 302 Md. 175 , 486 A.2d 196 (1985) (trial court abused discretion in refusing to give an instruction on alibi). ANALYSIS 1. Missing Evidence Instructions, Generally As a preliminary matter, we find that Cost’s proposed instruction is most accurately labeled as a “missing evidence” instruction.

While the Court of Special Appeals, as well as Cost, characterized Cost’s claim as “spoliation,” we consider this moniker misleading. As we describe below, “spoliation” is often used in civil cases, where parties withhold or destroy evidence strategically. The term “spoliation,” moreover, is often associated with egregious or bad faith actions, and not for cases involving negligent destruction or loss. Yet here, in the criminal context, “spoliation” is an imprecise term.

Instead, Cost’s claim is more accurately ³⁷⁰ titled as “missing evidence,” 6 which can include situations where the State intentionally or negligently destroyed—or merely failed to produce—relevant evidence. Maryland recognizes some form of jury instructions regarding missing or destroyed evidence in both civil and the criminal contexts. In the civil context, we give a jury instruction for the “spoliation of evidence” where a party has destroyed or failed to produce evidence. The pattern jury instruction reads as follows: The destruction of or the failure to preserve evidence by a party may give rise to an inference unfavorable to that party.

If you find that the intent was to conceal the evidence, the destruction or failure to preserve must be inferred to indicate that the party believes that his or her case is weak and that he or she would not prevail if the evidence was preserved. If you find that the destruction or failure to preserve the evidence was negligent, you may, but are not required to, infer that the evidence, if preserved, would have been unfavorable to that party. MPJI-CV 1:10. Such an instruction is designed to draw a jury’s attention to a simple, straightforward premise: that “one does not ordinarily withhold evidence that is beneficial to one’s case.” Anderson v. Litzenberg, 115 Md.App. 549, 562 , 694 A.2d 150, 156 (1997).

The instruction does not require that a jury make an adverse inference in situations involving the spoliation of evidence; rather, it merely permits such an inference. 7 See Joseph F. Murphy, Jr., Maryland Evidence ³⁷¹ Handbook § 409 (4th ed.2010) (“Destruction of evidence permits, but does not require, an inference that the evidence would have been unfavorable to the position of the party who destroyed the evidence.”). We have also recognized a “missing evidence” instruction in a criminal proceeding, though only against the defendant. The Maryland Criminal Pattern Jury Instructions (“MPJICR”) include an instruction on “Concealment or Destruction of Evidence as Consciousness of Guilt[,]” which reads in part as follows: Concealment or destruction of evidence is not enough by itself to establish guilt, but may be considered as evidence of guilt. Concealment or destruction of evidence may be motivated by a variety of factors, some of which are fully consistent with innocence.

You must first decide whether the defendant [concealed, destroyed, or attempted to conceal or destroy] evidence in this case. If you find that the defendant [did so] ... then you must decide whether that conduct shows a consciousness of guilt. MPJI-CR 3:26. We have held that “[consciousness of guilt evidence ..., including ... destruction or concealment of evidence!,]” is significant because “the particular behavior provides clues to the [actor’s] state of mind[.]” Decker v. State, 408 Md. 631, 640, 641 , 971 A.2d 268, 274 (2009).

This is hardly a novel concept; numerous commentators have expressed similar sentiments. Wigmore, for example, has explained the significance of the destruction of evidence as follows: It has always been understood—the inference, indeed, is one of the simplest in human experience—that a party’s ³⁷² falsehood or other fraud in the preparation and presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct is receivable against him as an indication of his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause’s lack of truth and merit. The inference thus does not necessarily apply to any specific fact in the cause, but operates, indefinitely though strongly, against the whole mass of alleged facts constituting his cause. 2 John Henry Wigmore, Evidence in Trials at Common Law § 278 (Chadbourn rev.1979) (emphasis deleted and footnote omitted). Here we consider the distinct, though related, question of when a “missing evidence” instruction is required against the State in a criminal proceeding. 2.

Patterson and Missing Evidence Instructions for a Criminal Defendant In a previous case, we have considered whether a defendant in a criminal case was entitled to a jury instruction regarding evidence that the State had failed to produce. See Patterson v. State, 356 Md. 677, 682 , 741 A.2d 1119, 1121 (1999). In Patterson , the defendant was convicted of drug possession after police discovered a jacket in the trunk of his car with crack cocaine in its pockets. See id. at 680-81 , 741 A.2d at 1121 .

The jacket was not itself introduced into evidence; instead, prosecutors offered into evidence a photograph of the jacket in the trunk of the defendant’s car. See id. The defendant unsuccessfully requested a “missing evidence” jury instruction stating that if the jacket “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 [the jury] may decide that the evidence would have been unfavorable to the State.” Id. at 682 , 741 A.2d at 1121 . We analyzed the trial court’s refusal to instruct the jury under substantive Maryland evidence law and on due process ³⁷³ grounds.

First, we held as a matter of Maryland law that the trial court did not err in rejecting the missing evidence instruction, as trial courts “fgjenerally ... need not instruct ... on the presence or absence of most evidentiary inferences, including ‘missing evidence’ inferences.” Patterson, 356 Md. at 694 , 741 A.2d at 1127 . We then considered the defendant’s claim that the defendant’s due process rights were violated by the state’s failure to produce the jacket. While noting that other states had found additional protections for defendants in their state constitutions, we found that Maryland’s Constitution guaranteed no additional protections: The United States Supreme Court’s interpretation of the Due Process Clause of the Fourteenth Amendment generally may be applicable in interpreting Article 24 of the Maryland Declaration of Rights. We have considered guarantees in the Declaration of Rights to be in pari materia with similar provisions of the federal constitution.

Thus, we apply the same standards whether the claim alleges violation of a state or federal constitutional right. Petitioner contends that the trial court’s refusal to give the missing evidence instruction denied him due process of law. The Supreme Court made clear in Arizona v. Youngblood, 488 U.S. 51 , 109 S.Ct. 333 , 102 L.Ed.2d 281 (1988), that when a defendant alleges a denial of due process he or she must prove that the government acted in bad faith[.] The Youngblood standard logically must extend to the refusal to instruct on the government’s failure to preserve evidence. Patterson, 356 Md. at 694-96 , 741 A.2d at 1128 (some citations omitted).

We thus held in Patterson that neither Maryland law nor due process required a jury instruction for the State’s failure to produce evidence. As we recognized in Patterson , the requirement that a defendant in a criminal proceeding show “bad faith” has its origin in Arizona v. Youngblood, 488 U.S. 51 , 109 S.Ct. 333 , 102 L.Ed.2d 281 (1988). In Youngblood , a man was convicted ³⁷⁴ for the rape of a young boy despite inconclusive scientific evidence. See Youngblood, 488 U.S. at 52-54 , 109 S.Ct. at 333-35 .

One sample of the assailant’s semen had not been refrigerated by the State, and expert testimony given at trial demonstrated that the defendant could have been exonerated if the evidence had been preserved. See id. at 54 , 109 S.Ct. at 335 . After conviction, the Arizona Court of Appeals reversed, holding that the State had denied the defendant due process by failing to preserve the evidence. See id.

The Supreme Court disagreed, holding that the Due Process clause was not violated when “there was no suggestion of bad faith on the part of the police.” Id. at 58 , 109 S.Ct. at 338 . The specific holding of Youngblood is that the Due Process clause is not violated, and thus the charges should not be dismissed, where the defendant has failed to show bad faith by the State in failing to preserve evidence that could be subject to further tests. Since Youngblood , states have struggled to determine the scope of the “bad faith” requirement. Specifically, states have been faced with a problem of whether a defendant in a criminal case could ever be entitled to a remedy, perhaps a lesser one than dismissal, when the State has destroyed or failed to preserve evidence.

Courts have had to balance the holding in Youngblood with the practical reality that the defendant will rarely, if ever, be able to show “bad faith” by the State. In so doing, different approaches have emerged. A few states have adopted the Youngblood standard and refused to provide extra protections for a defendant in a criminal case. These states include Georgia, Ohio, North Carolina, and Washington.

See Walker v. State, 264 Ga. 676 , 449 S.E.2d 845 (1994) (no due process violation where officer mistakenly destroyed evidence, believing it to be trash); State v. Lewis, 70 Ohio App.3d 624 , 591 N.E.2d 854 (1990)