Patterson v. State

CATHELL, Judge. Petitioner Andre Patterson was convicted by a jury in the Circuit Court for Montgomery County of possession of cocaine with intent to distribute and various driving offenses. He appealed to the Court of Special Appeals. That court affirmed petitioner’s convictions in an unreported opinion holding that the evidence was legally sufficient to support a conviction for the possession of cocaine with intent to distribute, that the trial judge did not erroneously refuse to give a requested “missing evidence” instruction to the jury, and that the trial judge did not erroneously deny petitioner’s motion to suppress physical evidence. ⁶⁸¹ We granted a writ of certiorari to consider whether the trial court erred in refusing to give the “missing evidence” instruction.

We also address petitioner’s argument that he was denied due process of law as a result of that refusal. Because we shall hold that a party generally is not entitled to a missing evidence instruction, we shall affirm. I. Facts At approximately 4:45 p.m. on April 16, 1996, Officer Brian Stone and Corporal Ronald Perry of the Montgomery County Police Department observed petitioner run a stop sign while driving a tan 1980 Buick Century bearing temporary District of Columbia vehicle tags. They stopped the vehicle and Corporal Perry ran a check on petitioner’s District of Columbia driver’s license.

After finding the driver’s license to be valid, he conducted a records check through the Maryland Motor Vehicle Administration and learned that petitioner’s Maryland license had been revoked. The officers then placed petitioner under arrest and ordered him into the front passenger seat of the police cruiser. Officer Stone sat in the driver’s seat of the police car next to petitioner while Corporal Perry conducted an inventory search of the 1980 Buick Century. Both watched as Corporal Perry inspected the vehicle.

The search produced a dirty jacket in the trunk of the car. In the jacket pocket was a plastic sandwich baggie, which contained thirty one-inch by one-inch clear Ziploc baggies, each of which individually contained a suspected rock of crack cocaine. At the moment Corporal Perry removed the baggie from the jacket pocket, Officer Stone heard petitioner exclaim, “Oh shit.” The evidence was later analyzed by a chemist and confirmed to be a total of 4.93 grams of cocaine. During the trial, instead of offering the jacket into evidence, the prosecution offered a photograph of the jacket showing it while it was in the trunk of petitioner’s car.

Cross-examination of both police officers revealed that the jacket was never held as evidence by the police, that the jacket was not the kind of evidence typically held as evidence by their agency, and ⁶⁸² that neither officer was aware of the jacket’s current whereabouts. Petitioner’s theory of the case was that the jacket did not belong to him and he apparently wished to try on the jacket at trial to show it did not fit him. There was no evidence indicating that the State was aware of whether petitioner owned the jacket, that petitioner intended to assert that the jacket was not his, or that the jacket did not fit him. At the close of trial, petitioner requested that the court issue a “missing evidence” instruction allowing the jury to infer that, because the State could not produce the jacket, its admission into evidence would have been unfavorable to the State.

The requested instruction read as follows: You have heard testimony that a piece of evidence in this case, a coat, was not produced at trial by the State. If a piece of evidence could have provided important information in this case and if the evidence 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 you may decide that the evidence would have been unfavorable to the State. The trial court refused to deliver the instruction. The Court of Special Appeals affirmed, holding that the trial judge had wide discretion in making such decisions.

We granted a writ of certiorari to address the following issue: “In a case where [petitioner] is charged with possession with intent to distribute cocaine found inside a jacket which the defense claims did not belong to [petitioner], and where the State has lost the jacket, did the trial court err in refusing to give a missing evidence instruction?” II. Discussion and Analysis The law concerning failure to produce evidence is well-defined in Maryland. If the State fails to produce evidence that is reasonably available to it or fails to explain why it has not produced the evidence, a defendant is permitted to comment about the missing evidence in his or her closing argument to the jury. Eley v. State, 288 Md. 548, 555-56 , 419 A.2d ⁶⁸³ 384, 388 (1980); Henderson v. State, 51 Md.App. 152 , 441 A.2d 1114 (1982).

In Eley , the State failed to produce fingerprint evidence against Eley and relied solely on eyewitness testimony for establishing his identification. In closing argument, defense counsel sought to argue that the State’s failure to utilize the more reliable fingerprint identification, and its failure to explain why it did not produce such evidence, gave rise to an inference that Eley’s fingerprints were not at the scene of the crime and, thus, he was not there. The trial court refused to allow defense counsel the opportunity to make this argument and the Court of Special Appeals affirmed. This Court reversed stating, “[o]ne can reasonably draw some adverse inference from the use of an inferior method when a superior [one] was readily available.” Eley, 288 Md. at 555 , 419 A.2d at 388 (quoting People v. Carter, 73 Ill.App.3d 406, 410 , 29 Ill.Dec. 631 , 392 N.E.2d 188, 192 (1979) (second alteration in original)).

The Court of Special Appeals correctly summarized our holding in Eley when it said, “[t]he message sounded by Eley is clear: Possible relevant evidence not introduced, or its absence explained, may be used against the State.” Henderson, 51 Md.App. at 153 , 441 A.2d at 1115 (1982). The law of Maryland concerning nonproduction of evidence is well-established: An inference may be made against the State. Such inferences have been allowed to take the form of closing arguments. A. The “Missing Evidence” Jury Instruction In Maryland, analysis of the denial of a request for a missing evidence instruction begins with the recognition that a trial judge has a duty, upon request in a criminal case, to instruct the jury on the applicable law.

Maryland Rule 4-325(c) provides in pertinent part: “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.” This Court has interpreted Rule 4-325(c) as “requiring] the trial court to give a requested instruction under the following ⁶⁸⁴ circumstances: (1) the requested instruction is a correct statement of the law; (2) the requested instruction is applicable under the facts of the case; and (3) the content of the requested instruction was not fairly covered elsewhere in the jury instruction actually given.” Ware v. State, 348 Md. 19, 58 , 702 A.2d 699, 718 (1997); see also Mack v. State, 300 Md. 583, 592 , 479 A.2d 1344, 1348 (1984). 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 not required. When a party fails to produce evidence, an inference may be made against it. Many inferences, however, may be drawn from a missing piece of evidence and “emphasis of one possible inference out of all the rest by a trial judge can be devastatingly influential upon a jury although unintentionally so.” Yuen v. State, 43 Md.App. 109, 114 , 403 A.2d 819, 823 (1979). As this Court has stated in the past in regard to missing witness instructions, when “the inference is communicated to the jury as part of the judge’s binding jury instructions, [it] creatfes] the danger that the jury may give the inference undue weight.

At the very least, a trial judge’s jury instruction ... may have the effect of overemphasizing just one of the many proper inferences that a jury may draw.” Davis v. State, 333 Md. 27, 52 , 633 A.2d 867, 879 (1993). Because most evidentiary inferences are questions of fact, not questions of law, missing evidence instructions can be distinguished from instructions on the elements of the crime that a defendant is charged with, instructions on the affirmative defenses that a defendant may utilize, and from evidentiary presumptions that the law recognizes but, without an instruction, a jury would not recognize. 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. ⁶⁸⁵ 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. While the nature of missing evidence instructions is an issue of first impression in this Court, the Court of Special Appeals has interpreted such instructions on several occasions. The Court of Special Appeals noted in Bailey v. State, 63 Md.App. 594, 611-12 , 493 A.2d 396, 404 , cert. denied, 304 Md. 296 , 498 A.2d 1183 (1985): No Maryland Court has ever held that a party is “entitled” to a missing evidence instruction, perhaps because, as we have noted in regard to “missing witness” instructions, “The failure to grant an affirmative instruction does not remove the availability of the inference.

As a consequence, whatever prejudice may usually come from not giving an advisory instruction is diminished, because the inferential thought process is still available. The prejudice is simply that such an inference is not given preferred instructional attention over any other inferences available from the testimony or absence of testimony. Possibly for that reason, judges hesitate to grant the missing witness instruction; they do not wish to emphasize one legitimate inference over all others which the jurors have been told are solely within their judgment.” Yuen v. State, 43 Md.App. 109, 114 , 403 A.2d 819 [, 823] (1979). Moreover, as McCormick has noted: “... a practice which gives a party a right to such instruction is undesirable.

If made a matter of right it is hard to escape the development of elaborate rules of law defining the circumstances when the right exists. To make it a ⁶⁸⁶ matter of right has the advantage, it is true, of focusing past experience on the problem presented at the trial, but the cost here of complex rules far outweighs the gain.” McCormick on Evidence, § 272 (2d Ed.1972). In Hall v. State, 69 Md.App. 37 , 516 A.2d 204 (1986), cert. denied, 308 Md. 382 , 519 A.2d 1283 (1987), the police failed to retain custody of a box found at the burglary scene from which Hall’s fingerprint was lifted. 1 Hall requested a missing evidence instruction allowing the jury to infer that, because the State “lost” the box, its admission into evidence would have been favorable to Hall. The trial court denied the instruction and the Court of Special Appeals affirmed: [Hall] was not precluded from introducing evidence or arguing that there was some reasonable explanation for the presence of the box with his fingerprint at the crime scene.

The trial court’s instruction adequately covered the possibility of such alternative explanations. Accordingly, we find no error in the trial judge’s refusal to give the additional instruction requested by [Hall]. Id. at 55, 516 A.2d at 213 . Petitioner relies heavily on the Court of Special Appeals decision in State v. Wadlow, 93 Md.App. 260 , 611 A.2d 1091 (1992), rev’d on other grounds, 335 Md. 122 , 642 A.2d 213 (1994), arguing that, because that court allowed a missing evidence instruction to stand, such an instruction is the only appropriate remedy.

In Wadlow, plastic bags of cocaine were seized by police and submitted for fingerprint analysis. At trial, the State could not locate the testing results. The trial court granted a missing evidence instruction. The Court of ⁶⁸⁷ Special Appeals refused to reverse the trial court. 2 Wadlow did not hold that such an instruction is mandatory.

Similarly, petitioner relies on State v. Werkheiser, 299 Md. 529 , 474 A.2d 898 (1984). This case is distinguishable because Werkheiser relied upon this Court’s interpretation of Maryland Code (1977, 1983 Cum.Supp.), section 16-205.1(d)(1)(iii) of the Transportation Article, which places a mandatory duty on police officers to obtain a blood sample from people who are unconscious or otherwise incapable of refusing to take a chemical test for blood alcohol content. 3 Werkheiser was convicted of driving while intoxicated. He was involved in a single-car accident, which rendered him unconscious. He remained in this unconscious state after he was taken to a hospital for his injuries.

Although the officer investigating the accident had reasonable grounds to believe Werkheiser was intoxicated, he did not order or request the hospital staff to test his blood alcohol content. Because the police officer breached his duty as defined by § 16-205.1(d), this Court said that “[i]n our view the appropriate remedy available to [Werkheiser] here would be to allow an inference that had the test been administered, the result thereof would have been favorable to him, to be weighed by the trier of fact along with all the other evidence presented, including the officer’s reasons for not directing that the test be administered.” Id. at 538, 474 A.2d at 903 . Our holding in Werkheiser is limited to the facts of that case. This Court acknowledged that an inference may be an appropriate remedy under some circumstances, but ⁶⁸⁸ we did not mandate that such inferences be presented in the form of a missing evidence instruction.

These cases support the same general standard: When evidence is missing, apparently due to the act or omission of one of the parties, an inference that the evidence would have been unfavorable to that party may be appropriate. That is all that is required. This Court has never directly addressed the mandatory nature of a missing evidence instruction. We did say the following, however, in regards to the related “missing witness” inference: The missing witness inference may arise in one of two contexts.

A party may request that a trial judge instruct the jury on the operation and availability of the inference where all the elements of the rule are present. See Christensen v. State, 274 Md. 138 , 333 A.2d 45 (1975). Additionally, a party may wish to call the jury’s attention to this inference directly during closing arguments. See Bruce [v. State], 318 Md. [706,] 729-31, 569 A.2d [1254,] 1266-67 [ (1990) ].

As a matter of necessity, the requirements of the missing witness rule must be more rigidly applied where the inference is used in the former context. Where a party raises the missing witness rule during closing argument, its use is just that—an argument. Davis v. State, 333 Md. 27, 52 , 633 A.2d 867, 879 (1993). We now further refine the issue in the case sub judice by holding that, 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.

In the case sub judice, the trial judge denied petitioner’s request for a missing evidence instruction; however, he did allow defense counsel to call the jury’s attention to this inference. The trial judge’s response to defense counsel’s request for a missing evidence instruction was as follows: Tell me the case. I do not know of any case either. I mean, I think you can argue that they should have produced the [jacket], but I do not know that you are entitled to an ⁶⁸⁹ instruction that says they are entitled to make some sort of negative inference from the failure to produce.

Well, I hear your argument, and it is an interesting one. It is probably a creative one, but it is not persuasive to me, so I am not going to grant it. [Emphasis added.] The record reflects that the trial judge understood the law surrounding missing evidence instructions and correctly asserted that petitioner could make the argument, but was not entitled to such an instruction. He was correct. We note that although the trial judge denied petitioner’s request for a missing evidence instruction, he did provide another instruction and allow defense counsel to call the jury’s attention to the inference.

The trial judge instructed the jury that in evaluating both the testimonial and physical evidence: “[y]ou may draw any reasonable inferences or conclusions from the evidence that you believe to be justified by common sense and your own experiences.” During closing argument defense counsel presented the following to the jury: Ask yourself why the coat isn’t here. The drugs are here. The coat is not here. Now I think when I asked the officer where the coat is, I do not think he gave an answer as to where the coat is or why it is not here.

Your recollection may be better than mine, but I do not think he said why the coat is not here. Evidence—the drugs are evidence. The coat would be evidence. And I asked him specifically, What is evidence, and would you agree with my definition, I said, [e]vidence would be any item which will be of use in a court proceeding to prove or disprove a fact under consideration.

Well, that is clearly what we have in this case. Who does the coat belong to? They have charged him with possession of drugs that are concealed in a coat. The question is clearly, Who does the coat belong to?

Did this man know what was in this coat? ⁶⁹⁰ Clearly the coat is evidence, and there is no explanation for why it is not here today. And you can infer from the fact that the police—and you heard—let me back up. You heard that there are policies and procedures as to logging in and logging out evidence because evidence is obviously very important. It is part of the officer’s job.

He collects evidence. He investigates, and he keeps that evidence secured and preserved so if it goes to trial, jurors like yourselves can take a look at that evidence. And that is what was done with the drugs. Mr. [Perry] testified, and he was very good about that.

He indicated that it is secured. It is brought in by an officer or technician. It is logged in. Every time that it is logged in or out of that vault, they make notations of that to preserve it, to secure it.

Why wasn’t the coat secured? Where is it? And I think you see in the paperwork here that the officer submitted, he wrote down on one of the forms miscellaneous property. He wrote down man’s jacket and logged it.

It was never logged out. What happened to it? You can infer from the State’s failure to produce this key piece of evidence in this case—you can make inferences, and you can infer that if a jacket or coat would be brought in here, that it would be unfavorable to the State. Perhaps if [petitioner] tried it on here today, it would not fit.

Petitioner called the jury’s attention to an apparent inference against the