Fleming v. State

RAKER, Judge. The question in this case is whether the trial court erred in refusing to instruct the jury on “mere presence” at the scene of a crime. William Fleming, petitioner, was charged with possession with intent to distribute controlled dangerous substances, possession of controlled dangerous substances and felon in possession of a handgun. Following one mistrial, 1 a second jury in the Circuit Court for Baltimore City convicted Fleming of possession with intent to distribute cocaine, Maryland Code (1957, 1996 Repl-Vol., 2000 Supp.) Article 27, § 286 (current version at Maryland Code (2002) § 5-602 of the Criminal Law ⁴³⁰ Article), and he was sentenced to a fourteen-year term of imprisonment.

On the afternoon of June 21, 1999, Sergeant Herbert Timberlake of the Baltimore City Police Department, together with two other officers, was patrolling the streets of Baltimore in an unmarked police car. At approximately 5:00 p.m., a woman standing near an alley on Collington Avenue caught Sgt. Timberlake’s attention, and, while looking down the alley, Timberlake observed a man later identified as petitioner exiting the backyard of 905 Collington Avenue. Timberlake testified that petitioner turned toward the police car, thereby enabling the officer to observe a plastic bag in his hand.

Timberlake asked the other officers to stop the car. According to Timberlake, as the officers exited the vehicle and approached petitioner in the alley, petitioner tossed the bag into the yard of the house. The officer noticed the bag in the yard, recovered it, and arrested petitioner. The plastic bag contained purple-topped vials later found to contain cocaine.

At trial on January 8 and 9, 2001, defense witnesses described a different version of events. Annie Fleming, petitioner’s sister, testified that the home at 905 Collingwood Avenue had belonged to their now-deceased mother. Their brother, John Fleming, lived in the house with several boarders. Because John was incarcerated at the time, the other siblings periodically checked the house.

On June 21, 1999, Annie Fleming asked petitioner and her other brother, Joe Cannon, to check on the house. Petitioner picked up the key from his sister and, according to Joe Cannon’s testimony, met Joe Cannon at the house. After the two brothers checked the house to ensure nothing was missing, Joe left petitioner to lock the house. Yvonne Cannon, a neighbor who lived one house away, testified that, as she prepared to hang wash in her backyard, she saw petitioner locking the rear door of the house.

She spoke to him as he was leaving, and then the police arrived. The police told petitioner to sit on the steps, and one of the officers picked something up in the yard. Yvonne Cannon testified that just ⁴³¹ before petitioner left the house she had seen police chasing “three little young guys,” one of whom threw something into the yard of 905 Collingwood Avenue. When Yvonne Cannon tried to tell the officers what she had seen and that petitioner simply was leaving his mother’s house, the officers were “nasty” and told her to “shut up.” At the close of evidence, defense counsel asked the trial judge to instruct the jury on mere presence.

Defense counsel requested Maryland Criminal Pattern Jury Instruction No. 3:25 on “mere presence.” 2 The trial judge refused to give the requested instruction. The jury convicted Fleming of possession with intent to distribute cocaine and acquitted him of the heroin charges. 3 Fleming was sentenced to a term of incarceration of fourteen years. Fleming noted a timely appeal to the Court of Special Appeals, raising the single issue of whether the trial judge erred in refusing to instruct the jury that mere presence at the scene of a crime is not sufficient to convict. In an unreported opinion, the intermediate appellate court held that, although a mere presence instruction was applicable considering the facts of the case, the judge’s other instructions on presumption of innocence, reasonable doubt, and the elements of the crimes charged made it clear that mere presence at the crime scene was not sufficient for a conviction.

This Court granted Fleming’s Petition for Writ of Certiorari and the State’s cross-petition. Fleming v. State, 369 Md. 659 , 802 A.2d 438 (2002). Two questions are presented for our consideration: ⁴³² Was the evidence presented at trial sufficient to generate the requested instruction on mere presence? If properly generated, was the requested mere presence instruction fairly covered by the other instructions actually given by the trial court?

Although we agree with the Court of Special Appeals that the instruction was applicable in light of the evidence presented at trial, we disagree that the instructions given fairly covered mere presence and, therefore, we shall reverse. It is the duty of the trial judge to instruct the jury concerning the law applicable to the case. See Maryland Rule 4-325; General v. State, 367 Md. 475, 485 , 789 A.2d 102, 107 (2002). Rule 4-325(c) provides as follows: “The court may, and at the request of any party shall, instruct the jury as to the applicable law and the extent to which the instructions are binding.

The court may give its instructions orally or, with the consent of the parties, in writing instead of orally. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given.” Thus, it is clear that the trial judge is required to give a requested instruction that correctly states the applicable law and that has not been fairly covered in other instructions. A court may refuse a particular instruction if the concept is fairly covered by other instructions. A defendant is not entitled to a particular worded jury instruction where jury instructions given cover the substance of the requested jury instruction.

The defendant is entitled to have the jury instructed on any theory of the defense that is fairly supported by the evidence. See General at 485 , 789 A.2d at 108 . Whether a particular instruction must be given depends upon whether there is any evidence in the case that supports the instruction; if the requested instruction has not been generated by the evidence, the trial court is not required to give it. See id. at 486-87 , 789 A.2d at 108-09 ; Hof v. State, 337 Md. 581, 612 , 655 A.2d 370, 386 (1995); Binnie v. State, 321 Md. 572, 582 , ⁴³³ 583 A.2d 1037, 1041 (1991).

Whether the evidence is sufficient to generate the requested instruction in the first instance is a question of law for the judge. See General, 367 Md. at 487 , 789 A.2d at 109 . In evaluating whether competent evidence exists to generate the requested instruction, we view the evidence in the light most favorable to the accused. Id., 789 A.2d at 109 .

On appeal, instructions are reviewed in their entirety to determine if reversal is required. The jury instructions must 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 protect the defendant’s rights and adequately covered the theory of the defense. Bruce v. State, 318 Md. 706, 731-732 , 569 A.2d 1254,1267 (1990).

It is a universally accepted rule of law that mere presence of a person at the scene of the crime is not of itself sufficient to prove the guilt of that person, even though it is an important element in determination of the guilt of the accused. See e.g., Moye v. State, 369 Md. 2 , 796 A.2d 821 (2002); White v. State, 363 Md. 150 , 767 A.2d 855 (2001); Taylor v. State, 346 Md. 452 , 697 A.2d 462 (1997); Wilson v. State, 319 Md. 530 , 573 A.2d 831 (1990); Tasco v. State, 223 Md. 503 , 165 A.2d 456 (1960); Watson v. State, 208 Md. 210 , 117 A.2d 549 (1955); Hopewell v. State, 122 Md.App. 207 , 712 A.2d 88 (1998); 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law, § 38 pp. 225-26 (15th ed.1993); Rollin M. Perkins & Ronald N. Boyce, Criminal Law, ch. 6 pp. 741 — 42 (3d. Ed.1982). The concept that mere presence at the place of a crime is not of itself sufficient to convict appears early in the law initially in the context of accomplice liability.

See e.g., Hopewell, 122 Md.App. at 210-16 , 712 A.2d at 90 -93 (citing cases); State v. Hildreth, 31 N.C. 440 (N.C.1849); Lewis Hochheimer, The Law of Crimes and Criminal Procedure, § 26, p. 16 (1st ⁴³⁴ ed. 1897). The modem view, however, does not limit the mere presence doctrine to accomplice liability, but instead finds it applicable to narcotic cases. See e.g, Pringle v. State, 370 Md. 525, 547 , 805 A.2d 1016, 1028 (2002) (holding evidence did not support probable cause to arrest defendant based on “mere presence” in car where narcotics were located); Moye, 369 Md. at 16 , 796 A.2d at 829 (requiring more than proximity to narcotics to sustain a conviction of possession); Taylor, 346 Md. at 460 , 697 A.2d at 466 (noting that “mere proximity to the drug, mere presence on the property where it is located ... is insufficient to support a finding of possession.”); State v. Harris, 647 So.2d 337, 338 (La.1994) (“It is settled ... that the mere presence of someone in the area where the controlled dangerous substance is found ... is insufficient to constitute constructive possession.”); People v. Wolfe, 440 Mich. 508 , 489 N.W.2d 748 (1992) (requiring more than “mere presence” for convictions of possession with intent to deliver cocaine and possession of a firearm during the commission of a felony); McShane v. State, 530 S.W.2d 307 (Tex.Crim.App. 1975) (stating that defendant was entitled to jury charge on mere presence in narcotics case); State v. Robinson, 306 S.C. 399 , 412 S.E.2d 411 (1991) (“Where narcotics are involved, mere presence is not sufficient evidence to support a conviction.”); State v. Lee, 298 S.C. 362 , 380 S.E.2d 834 (1989) (holding that defendant entitled to mere presence instruction when evidence supports conclusion that defendant was merely at the scene when drugs were found but it was questionable whether defendant had right to exercise dominion and control over them); German v. State, 429 So.2d 1138 (Ala.Crim.App. 1982) (addressing narcotics and mere presence in sufficiency of evidence case); State v. Lewis, 67 Conn.App. 643 , 789 A.2d 519 (2002) (finding trial court improperly denied mere presence instruction for charges related to sale of narcotics); cf. State v. Williams, 258 Conn. 1 , 778 A.2d 186 (2001) (approving mere presence instruction for defendant charged with illegal possession