Janey v. State

MEREDITH, J. A jury in the Circuit Court for Calvert County convicted William Ivan Janey of the second degree murder of his wife ⁶⁴⁷ and obstruction of justice in concealing the murder. In his brief in this Court, Janey raised two issues for our consideration: 1. Whether the trial court abused its discretion by refusing to instruct the jury as requested on the issue of cross-racial identification. 2. Whether the evidence is sufficient to sustain Janey’s conviction for obstruction of justice.

We revisit our decision in Smith v. State, 158 Md.App. 673, 679 , 857 A.2d 1198 (2004), rev’d on other grounds, Smith and, Mack v. State, 388 Md. 468 , 880 A.2d 288 (2005), in which we held that it is within the trial judge’s discretion to decide whether to give a requested jury instruction regarding cross-racial eyewitness identification. We conclude that the Court of Appeals’s ruling in Smith and Mack that, in some circumstances, cross-racial identification is a permissible subject of comment in closing argument does not impose an obligation upon the trial judge to give a separate instruction on this issue. We shall hold that the decision of whether to give such an instruction, when requested, remains committed to the sound discretion of the trial judge. We find no abuse of discretion in the trial judge’s refusal to give the requested jury instruction in Janey’s case, and shall affirm the conviction for second degree murder.

The State concedes that the evidence was not sufficient to sustain the conviction for obstruction of justice, and we shall reverse that conviction. Background At Janey’s trial, Eugene Jones, who was one of Janey’s long-time Mends, testified, under a grant of immunity, that Janey had called him on the evening of April 1, 2003, and asked him to go for a ride. Jones testified that when Janey picked him up, Janey asked him if he had any shovels. Jones borrowed two shovels from his sister’s house, and went for a ride in Janey’s pickup truck. ⁶⁴⁸ According to Jones’s testimony, Janey and Jones first drove to the St. Leonard’s Seventh Day Adventist Church, and dug a hole large enough to dispose of a body.

After digging the hole, they stopped at two filling stations, and at each gas station, they “threw something in the trash.” At the second filling station, Janey asked Jones to help him unbolt the large metal toolbox that was fastened to the rear of the pickup. Jones noted that Janey asked the “little foreign guy” who owned the station for a tool to assist them. According to Jones, Janey “knew the guy, so he went in and asked him, and he came and helped us out.” They eventually loosened all of the bolts. Jones further testified that Janey then drove him to Janey’s apartment, and asked him to help carry the toolbox from the pickup to the apartment.

When they reached the apartment, Jones observed scratches on Janey’s face, and Janey told Jones that his wife, Ebony Janey, had scratched him. Janey confessed to Jones that he had gotten into an argument with his wife, and “[t]hat he killed her, that he broke her neck.” Janey showed Jones Ebony Janey’s dead body, and enlisted Jones’s assistance in disposing of the body and cleaning up the apartment. The two men placed the dead body in the large toolbox, then carried the box downstairs to the pickup, and drove back to the hole they had dug, where they buried Ebony Janey’s body. In the course of investigating Mrs. Janey’s disappearance, the police interviewed Jones because he was a known associate of Mr. Janey.

Jones was initially uncooperative, but eventually, through legal counsel, Jones agreed to provide information regarding Mrs. Janey’s disappearance if Jones were granted immunity. After arrangements were made that were satisfactory to Jones and his attorney, Jones led police to the grave containing Mrs. Janey’s body, and testified at Janey’s trial as summarized above. One of the witnesses the prosecution called at trial to corroborate Jones’s story was Zaheer Akhtar, who was identified as the “foreign guy” from the second gas station men ⁶⁴⁹ tioned in Jones’s account of events. Mr. Akhtar identified Janey as one of two men who came to his gas station on the night of April 1, 2003.

Mr. Akhtar’s testimony included the following: [PROSECUTOR:] On the evening of April 1st, 2003 did you speak with someone who needed help loosening some bolts on the tool box in the back of a pickup truck? A Yes, ma’am. Q Can you tell the ladies and gentlemen of the jury about that? A I was sitting in my office and a gentleman pointed me [sic] from my garage door.

He signaled me like that. I went outside. He was trying to take the tool box off the truck. He asked me for the specific socket ... for the taking the bolt off the tool box, and he was asking me actually the wrong socket, but I told him which one he needed.

I went to try to help him. In the meantime he already taken care of that. Q So he asked you for help, but by the time you could get him the right socket he had already gotten it? A He has already got it off.

Q Was there two gentlemen there or just one? A Two. Q Now, the one who was talking to you, do you recall if there was anything unusual about his face? A Yes.

I saw scuff, you know, like I describe on my paper on testimony before. It’s a shiny, you know, face on — like a cat type, you know, like you defend some — somebody. It was like Vaseline, you know, on his face. Q So it was scratches?

A Yes. Q Like a cat? A Yes, ma’am. Q And then there was Vaseline on top of the scratches? ⁶⁵⁰ A On the top of them, I mean the shiny thing.

So I describe Vaseline, it could be anything else. Q It looked to you like Vaseline? A Yes. Q Now, this person with the scratches on his face, had you seen him before?

AI saw him once before. Q And how was it you came to see him once before? A One time he asking me if I can switch couple tires for him, he — I talked to him. Q So he had been in your shop before?

A Just one time. Q Is that person that you spoke to that night that you helped, is he in the courtroom today? A Yes. Q Can you identify him please for the ladies and gentlemen of the jury?

A He is right over there. On cross-examination, defense counsel brought out the fact that Mr. Akhtar had previously had difficulty selecting Janey’s picture from an array of six photographs. Mr. Akhtar further admitted that he has difficulty identifying African Americans: [DEFENSE COUNSEL:] And at the time that you looked at these photos at least by [the detective’s] account it took you about two minutes, is that a fair— AI guess it was. Q And at the time that you looked at the pictures Detective Whitacker said that you had indicated it could be that person?

AI said — because I told him I said I am not very good with, you know, these kind of faces. If — I said if you look at Asian face, a whole bunch of them, you will not recognize. But if I see a whole bunch of African American face, I’ll probably miss, you know, I’m not very good picking. So I said I know this is person here, but I could be — but I said if ⁶⁵¹ I see him again, I will point it very quickly.

Because these faces, if you look at it, it look like same, you know. Q So you were a little unsure when you looked at the photographs? A Yes, but then I pointed, I said, yes, this is the person. Q Now ... did Detective Whitacker ever say, well, let’s do a line-up where you could actually see the people?

A No. Q The only thing he did was this photo spread? A That’s exactly. Q And the of course seeing Mr. Janey sitting here today? A Yes.

Yes. Q Now, after you picked out picture number four you asked Detective Whitacker if you had picked the right person, did you not? A Well, I was just asking like did I did right thing for you, he said I can’t tell you. Q But you were still unsure, you wanted to ask him if you had picked the right person?

A Well, I just want to ask him, you know, just formality. Q And you called [the defendant] Mr. Janey. Did you know his name was Janey before all of this happened? A No, not really the name, but I met him one time before.

He came to my shop. He said — he was nice person. He told me he moved in this county and he needs a couple tire change. I help him out, and he told me he just moved in, and his brother was helping him with his tires and stuff like that.

So, you know, that’s why he pointed me, and he said you remember me, I said yes, I remember you. Q But at the time this happened in April you didn’t know his name was William Janey, did you? A No. No. ⁶⁵² Q ... but the reason you used the name Janey today is because you have learned the name Janey between April and now? A ... exactly.

On redirect examination, Mr. Akhtar responded “yes” when asked whether, even though he could not recall the date Janey came to the station, he was “sure that the person [he] saw that night had scratches on his face.” Relying upon the concurring opinion of Chief Judge Bazelon in United States v. Telfaire, 469 F.2d 552, 561 (D.C.Cir.1972), the defense requested that the trial court instruct the jury as follows with respect to the reliability of cross-racial identification: In this case, the identifying witness is of a different race than the defendant. In the experience of many, it is more difficult to identify the members of a different race than members of one’s own. If this is also your own experience, you may consider it in evaluating the witness’s testimony. You must also consider, of course, whether there are other factors present in this case which overcome any such difficulty of identification.

For example, you may conclude that the witness has had sufficient contacts with members of the defendant’s race that [he] would not have great difficulty in making a reliable identification. (The requested instruction is identical to the instruction on cross-racial identification that was requested, but not given, in Smith v. State, 158 Md.App. 673, 679 , 857 A.2d 1198 (2004), rev’d on other grounds, Smith and Mack v. State, 388 Md. 468 , 880 A.2d 288 (2005).) The trial judge refused to give this instruction. He instead charged the jury using the Maryland Criminal Pattern Jury Instructions relating to credibility of witnesses and identification testimony, MPJI-Cr. 3:10 and 3:30: You are the sole judges of whether — or judge of whether a witness should be believed. In making this decision you may apply your own common sense and every day experiences.

In determining whether a witness should be be ⁶⁵³ lieved you should carefully judge all the testimony and evidence and the circumstances under which the witness testified. You should consider such factors as the witness’s behavior on the stand and manner of testifying, did the witness appear to be telling truth, the witness’s opportunity to see or hear the things about which testimony was given, the accuracy of the witness’s memory, does the witness have a motive not to tell the truth, does the witness have an interest in the outcome of the case, was the witness’s testimony supported or contradicted by evidence that you believe, and whether and the extent to which the witness’s testimony in court differed from the statements made by the witness on any previous occasion. You need not believe any witness, even if the testimony is uncontradicted. You may believe all, part, or none of the testimony of any witness.

The burden is on the State to prove beyond a reasonable doubt that the offense was committed and the defendant was the person who committed it. You have heard evidence regarding the identification of the defendant as the person who committed the crime. In this connection you should consider the witness’s opportunity to observe the criminal act and the person committing it, including the length of time the witness had to observe the persons committing the crime, the witness’s state of mind, and any other circumstances surrounding the event. You should also consider the witness’s certainty or lack of certainty, the accuracy of any prior description, and the witness’s credibility or lack of credibility, as well as any other factors surrounding the identification.

The identification of the defendant by a single eyewitness as the person who committed the crime if believed beyond a reasonable doubt can be enough evidence to convict the defendant. However, you should examine the identification of the defendant with great care. It is for you to determine the reliability of any identification and give it the weight you believe it deserves. ⁶⁵⁴ After the trial judge instructed the jury, counsel for the defendant objected, as required by Maryland Rule 4-325(e), to the court’s failure to give the requested instruction regarding cross-racial identification. Discussion The general rule regarding jury instructions is that the trial judge “has a duty, upon request in a criminal case, to instruct the jury on the applicable law.” Gunning v. State, 347 Md. 332, 347 , 701 A.2d 374 (1997).

Maryland Rule 4-325(c) provides: 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 need not grant a requested instruction if the matter is fairly covered by instructions actually given. In evaluating a trial court’s refusal to charge a jury as requested, a reviewing court “must determine whether the requested instruction was a correct statement of the law; whether it was applicable under the facts of the case [i.e., whether the evidence was sufficient to generate the desired instruction]; and whether it was fairly covered in the instructions actually given.” Gunning, 347 Md. at 348 , 701 A.2d 374 (quoting Grandison v. State, 341 Md. 175, 211 , 670 A.2d 398 (1995), cert. denied., 519 U.S. 1027 , 117 S.Ct. 581 , 136 L.Ed.2d 512 (1996)). In contrast to the judge’s duty to instruct the jury as to the applicable law, however, there is generally no duty for a trial court to give instructions that emphasize particular facts in evidence.

In Patterson v. State, 356 Md. 677, 684-85 , 741 A.2d 1119 (1999), Judge Cathell wrote for the Court of Appeals: Maryland Rule 4-325(c) imposes a requirement that instructions be given in respect to the applicable law in a case. It does not apply to factual matters or inferences of fact. Instructions as to facts and inferences of fact are normally ⁶⁵⁵ not required. When a party fails to produce evidence, an inference may be made against it.... ...

Elements, affirmative defenses and certain presumptions relate to the requirement that a party meet a burden of proof that is set by a legal standard. A trial judge must give such an instruction if the evidence generates the right to it because it sets the legal guidelines for the jury to act effectively as the trier of fact. An evidentiary inference, such as a missing evidence or missing witness inference, however, is not based on a legal standard but on the individual facts from which inferences can be drawn and, in many instances, several inferences may be made from the same set of facts. A determination as to the presence of such inferences does not normally support a jury instruction.

While supported instructions in respect to matters of law are required upon request, instructions as to evidentiary inferences normally are not. Accord Lowry v. State, 368 Md. 357, 374 , 768 A.2d 688 (2001)(per curiam). Notwithstanding the general rule that instructions relating to facts and inferences to be drawn from the evidence need not be given, the Court of Appeals has expressed concern that jurors may need guidance in some cases to assist them in evaluating eyewitness identification testimony. In Gunning, supra, the trial judge had rejected out of hand a request that the judge give MPJI-Cr 3:30 (regarding identification testimony).

Judge Chasanow wrote for the Court of Appeals, 347 Md. at 354-55 , 701 A.2d 374 (footnotes omitted)(emphasis added): If a party requests an identification instruction in a criminal case, the trial judge must evaluate whether the instruction is applicable to the facts of the case at hand, keeping in mind that the purpose of a jury instruction is “to aid the jury in clearly understanding the case, to provide guidance for the jury’s deliberations, and to help the jury arrive at a correct verdict.” Chambers v. State, 337 Md. 44, 48 , 650 A.2d 727, 729 (1994). When uncorroborated eyewitness testimony is a critical element of the State’s case and ⁶⁵⁶ doubts have been raised about the reliability of that testimony, a request for an eyewitness identifícation instruction should be given careful consideration. Conversely, a request for an eyewitness identification instruction may be rejected when there is corroboration of the defendant’s participation in the crime, when the circumstances surrounding the eyewitness identification do not give rise to any reasonable doubts as to its accuracy, or when other instructions contain criteria or guidance that is similar to the requested instruction. Such determinations lie within the sound discretion of the trial court.

In Gunning , the trial judge in two separate cases had refused to give a requested eyewitness identification instruction. In each case, the defendant was convicted on the basis of uncorroborated eyewitness identification testimony. Each defendant had interposed a mistaken-identity defense, but the requested instruction was rejected in each instance because the trial court was of the opinion that identification was a question of fact that required no specific instruction to the jury. The trial judge further commented that he “never” gives a witness identification instruction, and that it was “regrettable” that MPJI-Cr 3:30 “found its way into the pattern jury instructions.” 347 Md. at 339 , 701 A.2d 374 .

The Court of Appeals reversed, but in doing so, did not hold that the failure to give such an instruction was reversible error. Rather, after surveying the division of authority on the issue of whether identification instructions must be given in every case involving eyewitness testimony, the Court of Appeals declined to adopt a mandatory rule, and agreed with those courts that have “held that the decision as to whether to give such an instruction lies within the sound discretion of the trial court.” Gunning, 347 Md. at 345 , 701 A.2d 374 (footnote omitted). The Court stated: “We do not find instructions on such issues to be always mandatory, but neither do we consider them never necessary or per se improper as suggested by the trial judge. We instead recognize that an identification instruction may be appropriate and necessary in certain in ⁶⁵⁷ stances, but the matter is addressed to the sound discretion of the trial judge.” Id. at 348 , 701 A.2d 374 .

The reversible error in Gunning was that the trial judge had not exercised any discretion. As the Court of Appeals pointed out, “the judge’s denial of the requested eyewitness identification instructions was not grounded on the exercise of judicial discretion; rather, the record ... is clear that the denial was based on the application of a uniform policy [of the trial judge], a policy which arose from the judge’s personal opinion that identification instructions are not ‘appropriate.’ ” 347 Md. at 351 , 701 A.2d 374 . “[T]he requested identification instructions should have at least been given careful consideration in the instant cases, and arbitrarily rejecting them as always inappropriate was an abuse of discretion.” 347 Md. at 353-54 , 701 A.2d 374 . The Court in Gunning found “little merit” in the State’s argument that an identification instruction as sought by the defense “goes beyond an explanation of the substantive law, and includes particular factors that the jury should consider in evaluating the identification testimony.” Id. at 347 , 701 A.2d 374 . But cf. Patterson v. State, supra, 356 Md. at 684 , 741 A.2d 1119 (because Rule 4-325(c) is inapplicable to factual matters, “regardless of the evidence, a missing evidence instruction generally need not be given; the failure to give such an instruction is neither error nor an abuse of discretion”); Lowry v. State, 363 Md. 357, 374 , 768 A.2d 688 (2001) (quoting Patterson with approval); Imes v. State, 158 Md.App. 176 , 193 n. 9, 855 A.2d 381 (“A trial judge is not required to give an instruction with respect to evidentiary inferences.”), cert. denied, 384 Md. 158 , 862 A.2d 994 (2004).

The Court in Gunning explained that an identification instruction such as MPJI-Cr 3:30 may be helpful in some cases: In ruling on a request for an identification instruction, therefore, the trial judge must necessarily exercise discretion in assessing whether the instruction ought to be given and whether the issue of identification is fairly covered by other instructions. In many cases, detailed instructions on ⁶⁵⁸ such issues as witness credibility and/or the burden of proof may adequately encompass the subject matter of a requested identification instruction. In other cases, however, because of the centrality of the identification issue and the nature of the eyewitness testimony, a separate identification instruction might be helpful to the jury. Although jurors might know generally that a witness’s perception, especially in times of stress, is not always reliable and that memory is not infallible, an identification instruction assists the jury in its task by pointing out the specific factors that may affect eyewitness identification.

A credibility instruction that focuses primarily on honesty and bias may not adequately cover those factors, and thus may not be sufficient in some cases to assist the jury in evaluating whether an eyewitness is mistaken. In any event, the trial judge must examine the unique circumstances of each case before rejecting a requested eyewitness identification instruction. In particular, the trial judge should consider whether there is a real issue of mistaken identity generated by the defense, as well as such factors as whether the identification testimony is questionable because of the circumstances surrounding either the witnesses’ observations or the identification procedures, and whether there is corroborating evidence concerning the defendant’s participation in the crime. Gunning, 347 Md. at 350 , 701 A.2d 374 .

It is clear, therefore, that an instruction that cautions the jury about pertinent factors that can affect the reliability of eyewitness identifications in general may be appropriate. Indeed, the witness identification instruction given by the trial judge in Janey’s case, based upon MPJI-Cr 3:30, did address the factors highlighted in Gunning . One question that was not specifically argued by Janey is whether the omission of any mention of the races of the witness and the defendant from the list of factors that may be considered could lead some jurors to conclude that they may not consider such facts. We note, however, that the pattern instructions do not purport to be exhaustive lists of permissible considerations.

Rather, MPJI-Cr 3:30 instructs the jury ⁶⁵⁹ to consider certain factors “as well as any other factor surrounding the identification.” Similarly, the more general pattern instruction regarding evaluation of witnesses, MPJI-Cr 3:10, instructs the jury: “[Y]ou may apply your own common sense and every day experiences.” Moreover, if counsel are permitted, in some circumstances, to argue to the jury that cross-racial identifications may be less reliable, there is less danger of jurors concluding in such cases that this is an issue that may not be considered in evaluating the credibility of the witness’s identification of the defendant. In Smith v. State, supra, 158 Md.App. 673 , 857 A.2d 1198 , this Court was asked to find reversible error in the trial court’s refusal to grant the same cross-racial identification instruction that was requested by Janey (i.e., an instruction that would have told the jurors that, in addition to the factors mentioned in MPJI-Cr 3:30, they may also consider that, “[i]n the experience of many, it is more difficult to identify members of a different race than members of one’s own”). In Smith , the African American defendants were convicted on the basis of the testimony of a single eyewitness, who was white. On appeal to this Court, the defendants asserted that the trial court erred, first, by refusing to instruct the jury on the difficulties of cross-racial identification, and, second, by refusing to allow defense counsel to refer in closing argument to that same identification issue.

A divided panel of this Court would have affirmed the conviction. There was no division among the judges of this Court, however, with regard to the