Hayes v. State

BELL, Judge. John E. Hayes was convicted by a jury in the Circuit Court for Baltimore City of theft over $300, and was sentenced to four years incarceration. Hayes asks this Court to consider the following questions: 1. Did the trial court err in giving a missing witness instruction over Hayes’ objection? 2.

Did the trial court err in allowing the State to introduce evidence regarding a charge that had been severed from the instant case? 3. Did the trial court abuse its discretion in refusing to declare a mistrial after a prosecution witness improperly testified to Hayes’ involvement in crimes unrelated to the offense charged? Because our answer to the first question is “yes”, we need not consider the other two issues. FACTS On February 7, 1982, the home of Lucia Midkiff was burglarized.

The burglary was committed by Ted Hickman ⁴⁹² and Jay Connelly. The items taken during the burglary included jewelry, silver, silverplate, stereos and radios worth approximately $7,285. On March 10, 1982, Lucia Midkiff identified some of the silverplate at the Baltimore City Police Department. On March 12, Midkiff identified a monocle, a necklace and a collar pin on display at an antique shop owned by Hayes.

Hayes was subsequently arrested.. At the trial, Hickman related to the jury that the proceeds of the burglary were put in a trash can and moved to Paul Bentley’s garage, from which location, Paul Bentley was going to sell the merchandise. Hickman further testified that John Hayes (the appellant), Jay Connelly, and Paul Bentley were all present at the garage, and that Hayes had purchased a silver pitcher, silverplate, and some jewelry for $125.00. Bentley testified that he had met Hayes at a pawn shop where Hayes gave him a card and asked Bentley to call if obtained any more gold or silver.

About four weeks later, Bentley called Hayes and invited him to look at some items he had for sale. Hayes went to Bentley’s garage and bought the subject jewelry, silver, and silverplate. In response to a question about the Midkiff burglary, Bentley told the jury: In respect to Mrs. Midkiff’s burglary, he said ... as far as I’m concerned, it’s yours. I don’t know where it comes from.

I really don’t care ... in respect to the other burglaries. Hayes promptly moved for a mistrial, but the motion was denied. Over objection, Lance Keimig related to the jury that he sold Hayes “several boxes of glass and china [which had been] taken from my parents’ house without their knowledge.” Keimig allegedly was not involved in the Midkiff burglary, but participated in the Keimig theft which was the subject of a separate indictment. Detective Dan Gunther testified that he spoke to Hayes after the arrest and that Hayes acknowledged that on or about February 10,1982, he had purchased a bag of jewelry, ⁴⁹³ including the monocle, the necklace and the collar pin, for twenty-five dollars from Paul Bentley and Lance Keimig.

The purchase occurred in a garage behind Bentley’s house. Hayes saw a trash can full of silverplate in the garage but he did not purchase any of it. Hayes said that he threw away all of the jewelry except the monocle, necklace and collar pin. Sometime later Hayes related to Gunther that he had purchased from Lance Keimig a clock with a broken dome.

Gunther further narrated, over objection, that on March 15, 1982, he seized various items of glassware and china from Hayes’ home. The defense conceded that Hayes had purchased the monocle, the necklace and the collar pin, but contended that when he did so he had no reason to believe they were stolen property. Hayes acknowledged that on February 10, 1982, he went to Bentley’s house in response to a call from Bentley. There, he purchased the monocle, necklace and collar pin.

He said that other than those three items there was no jewelry in the garage and that only he, Bentley, and Keimig were present. Hayes next saw Bentley and Keimig on February 18,1982, at his shop. At that time, he bought two boxes of glassware for $100 and accepted a cracked dome clock on consignment. Hayes further testified that he gave the police a “full statement” in which he identified Bentley and Keimig as the individuals who sold him the items stolen from the Midkiff residence.

Hayes had stated that he was driven to the Bentley residence on February 10, 1982, by Joseph Giordano, his brother-in-law. While the trial was in progress, the prosecutor advised defense counsel that Giordano, who was under summons by Hayes, had been arrested and was in the lock-up on an unrelated matter. The prosecutor also informed defense counsel that Giordano had a prior conviction for receiving stolen property. Hayes decided not to call Giordano.

Neither counsel requested a missing witness in ⁴⁹⁴ struction; nevertheless, the judge told counsel that a missing witness instruction would be given. Hayes objected for a number of reasons including that Giordano was not “peculiarly” within his power to call, and that the witness would not make a good impression because of being in the lock-up all day. In addition, the defense was concerned about the effect of the prior conviction of the witness. The court announced that it would give the instruction in a way that if the witness was equally available to both sides, “then the adverse inference need not arise.” Counsel for Hayes chose not to argue to the jury that the inference did not apply because Giordano was equally available to the State.

The court was true to its word and instructed the jury in relevant part as follows: Members of the Jury, I instruct you that where it is logical or reasonable that a party would call a particular witness and the party fails to call such a witness, the law says that there is an inference that the testimony that that witness would have given would have been adverse to the one who logically would have called him. But that inference need not arise if the testimony would be cumulative, repetitive. It need not arise if both sides could have called the witness, and it need not arise if the testimony would have been unimportant. Defense counsel repeated his objection to the instruction.

Did the trial court err in giving a missing witness instruction over Hayes’ objection? Hayes contends the court erred in giving the missing witness instruction because Giordano was not “peculiarly” within his control. The instruction provides that if a party (Hayes) has it peculiarly within his control to produce a witness (Giordano) whose testimony would elucidate the transaction, his failure to call the witness permits an inference that the witness’ testimony would have been unfavorable to that party. The witness must be “peculiarly available” to the party against whom the inference would be imposed.

The missing witness instruction is not appropriate ⁴⁹⁵ where the witness is equally available to the other side. Graves v. United States, 150 U.S. 118, 121 , 14 S.Ct. 40, 41 , 37 L.Ed. 1021 (1893); See, Christensen v. State, 274 Md. 133, 134-35 , 333 A.2d 45 (1975); Yuen v. State, 43 Md.App. 109, 112-14 , 403 A.2d 819 (1979); Underhill, Criminal Evidence, Section 45 (rev. 6th ed. P. Herrick 1973). We hold the court erred in giving the missing witness instruction for two reasons: (a) Giordano was not peculiarly within the control of Hayes; (b) there was no factual predicate before the jury upon which they could rationally decide whether and how to apply this instruction.

The missing witness rule originated in civil cases. The Court of Appeals of Maryland has consistently applied this rule in civil cases and held that where a party fails to take the stand to testify as to facts peculiarly within his knowledge, or fails to produce evidence (e.g., testimony by certain witnesses) the fact finder may infer that the testimony not produced would have been unfavorable to that party. Chalkley v. Chalkley, 236 Md. 329 , 203 A.2d 877 (1964). Dawson v. Waltemeyer, 91 Md. 328 , 46 A. 994 (1900).

In civil cases, the unfavorable inference applies where it would be most natural under the circumstances for a party to speak, or present evidence. Brooks v. Daley, 242 Md. 185, 194 , 218 A.2d 184 (1966). Professor Wigmore states the rule in regard to permissible inferences to be drawn from a party’s failure to testify as follows: It would be generally agreed, to be sure, that the mere fact of the party’s failure to testify is not of itself open to inference; it is his failure when he could be a useful and natural witness ... that is significant. 2 Wigmore on Evidence (3d ed.) § 289, p. 173. The Supreme Court in applying the rule to criminal cases articulated the rule somewhat more restrictively than Professor Wigmore, in that the witness must not only be “naturally” accessible to the party but must be “peculiarly” so.

The Court said: ⁴⁹⁶ 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, supra, 150 U.S. at 121 , 14 S.Ct. at 41 (Emphasis added). The Court of Appeals for the District of Columbia in Conyers v. United States, 237 A.2d 838 (1968), citing Pennewell v. United States, 353 F.2d 870 (D.C.Cir.1965) further stated: The corollary proposition that no presumption arises from the failure of one party to call a witness if that witness is equally available to both parties is also well established. The use of the missing witness instruction in criminal cases has been addressed by the courts of Maryland with varying emphases.

See e.g., Christensen v. State, 274 Md. 133 , 333 A.2d 45 (1975) (granting instruction was reversible error where the witness was alleged accomplice); Nelson v. State, 5 Md.App. 109 , 245 A.2d 606 (1968) (instruction properly rejected where there was no evidence the testimony would be other than cumulative); Winegan v. State, 10 Md.App. 196 , 268 A.2d 585 (1970) (instruction properly denied where there was no evidence testimony would be other than cumulative); Simpson v. State, 34 Md.App. 378 , 367 A.2d 66 (1977) (granting instruction was reversible error because the missing witness would have been implicated in another crime according to defendant’s proffered testimony); Briscoe v. State, 40 Md.App. 120 , 388 A.2d 153 (1978) (instruction properly rejected because the witness would have testified to scientific tests which were available to both sides). Hutchinson v. State, 41 Md.App. 569 , 398 A.2d 451 , affirmed 287 Md. 198 , 411 A.2d 1035 (1979) (instruction properly denied where witness was equally available to either side); Yuen v. State, 43 Md.App. 109 , 403 A.2d 819 (1979) (instruction properly denied because witness was available to both sides). ⁴⁹⁷ In Pierce v. State, 34 Md.App. 654 , 369 A.2d 140 (1977) the issue of the missing witness was raised because the prosecutor argued the inferences to be drawn to the jury. This was upheld on the basis of what is now Md.Rule 757 g which in turn rests “upon