Pierce v. State

Lowe, J., delivered the opinion of the Court. Appellants Pierce and Jackson were tried together and convicted of robbery with a deadly weapon and numerous related crimes, by a jury in the Circuit Court for Prince George’s County. The testimony at trial indicated that the appellants and two other subjects attempted to rob the Hechinger’s Department Store in Marlow Heights, Maryland. Both appellants were identified at trial by eyewitnesses.

We will refrain from detailing the facts and evidence at length because, for the most part, they are not material to these appeals. Pierce After raising three issues on appeal, appellant Pierce runs them together under a single argument. We will respond ⁶⁵⁶ to the first two in kind. Upon review we find his contention that a pretrial photographic identification was impermissibly suggestive to be totally without merit. 1 Nor are we convinced by his second contention that evidence had been suppressed by the prosecutor in violation of Brady v. Maryland, 373 U. S. 83 .

Our review found no Brady violation. To the contrary, we found Brady totally inapposite to the factual situation here. 2 Although appellant’s third assignment of error was also cursorily briefed, it is answered less simply. In light of the Court of Appeals’ ruling in Christensen v. State, 274 Md. 133 , appellant contends that the trial judge committed reversible error when he failed to grant a mistrial after having overruled appellant’s objections to the prosecutor’s attempts to invoke the “missing witness rule” in closing argument. Appellant also contends that, at least, the judge should have, on his own motion, stricken the remarks “from the jury’s consideration”.

Pierce, who took the stand on his own behalf, testified that he was not at the scene of the crime. He contended that before, after and during the time of the commission of the crime, he was with his friend Nathaniel “Pee Wee” Young at locations removed from the crime scene. Young was among four persons whom the State contended had committed the crime. He was not on trial however, and he did not testify.

The prosecutor emphasized Young’s absence and indicated ⁶⁵⁷ that he was not produced by Pierce because he would not have supported Pierce’s alibi: “Now, further in this case Mr. Pierce, whose really only alibi witness is an individual by the name of Nathaniel Young, also known as Pee Wee, this man if he was present in court could, in fact, show the whereabouts of Mr. Pierce on this particular date. The only people that testified to the whereabouts of Mr. Young on this date was our witnesses, who put him right in that store and right in that parking lot shooting that gun at all those people. Those witnesses picked him out along with Mr. Pierce on this particular day. Why didn’t they bring in Pee Wee, Nathaniel Young, to show his whereabouts?

He never came in this courtroom, he never testified. The only one who testified to his whereabouts was the next door neighbor. MR. HARRISON: I object to the comment of counsel.

THE COURT: Overruled. Proceed. Now, in a criminal case it is a search for the truth. I through my prosecution of the case have tried to present to you all the witnesses that I felt would be beneficial in this case, in bringing out the truth.

I again ask you to ask yourselves where the alibi witnesses in this case are to establish the whereabouts of Mr. Jackson on this particular date, where are the people that back him up, and what he said? And for Mr. Pierce, where is the other individual that was with him, Nathaniel Young? Why aren’t these people in court to testify. MR.

HARRISON: I object again, Your Honor. THE COURT: Overruled.” ⁶⁵⁸ The “missing witness 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, 150 U. S. 118, 121 . A Court of Appeals’ writ of certiorari was directed to our opinion in Christensen v. State, 21 Md. App. 428 , wherein we had held that rule to be applicable in criminal cases, and the writ was granted: "... in order that we might consider Christensen’s contention that application of the ‘missing witness’ rule in criminal cases is ‘an unconstitutional deprivation of the defendant’s right to confrontation and cross-examination as guaranteed under the Sixth Amendment of the United States Constitution and Article 21 of the Declaration of Rights in the Maryland Constitution’ . .. .” Christensen, supra, 274 Md. at 134 . In light of the issue having been one of first impression in criminal cases in Maryland, this was a commendable issue for certiorari consideration.

Regrettably, however, that question was never reached. The Court had an addendum upon its writ: “and that ‘assuming the missing witness rule is not unconstitutional’ that ‘it [was not] applicable in the present case.’ ” Id. at 134 . We were reversed on the facts without having been enlightened on the law: “We shall not address ourselves to the first contention because we conclude that the rule is not applicable to this case. For the same reason we shall be obliged to reverse the conviction.” Id. at 134 . ⁶⁵⁹ Nor were we told whether our analysis of the cases, concluding in the determination that the missing witness rule is applicable in a criminal case, was correct or incorrect.

The Court of Appeals relied upon, and adopted, as “the better and the majority rule” an exception quoted from 1 Wharton Criminal Evidence § 148: “No inference arises if the person not called as a witness by the defendant is a codefendant or an accomplice not presently on trial, or has already been convicted of the same offense as that for which the defendant is being prosecuted.’ Id. at 251.” Id. at 139-140. Although it would appear that the Wharton exception has become the Maryland rule, it would seem apparent that the adoption of the exception presupposes the recognition of the rule. But that is neither what the Court of Appeals held, nor is it necessary for us to decide here. Here, as in Christensen, it is the exception with which we are concerned, not the rule.

Although Judge Smith (who wrote for the Court of Appeals in Christensen) emphasized by repetition that the holding there was restricted to “the facts of [that] case”, the similarity of circumstances here casts the case in a beguilingly precedential light. 3 In Christensen the absence of the witness was argued extensively (by the State, as indicative of an unfavorable inference, and by the accused, who contended that the absence redounded as well against the State, Christensen v. State, 21 Md. App. at 435-436 ), but the Court of Appeals did not reach the issue of the propriety of arguing, to the jury, inferences that were available to them from the absence of a witness. Judge Smith clearly outlined the limited issue to which the Court spoke in that case: “The critical question becomes whether the trial judge should or should not have granted the ⁶⁶⁰ instruction requested by the defendant.” 274 Md. at 139 . Because the Court decided that the trial judge had erred in denying the requested instruction, we were reversed, but on that issue alone. However, when Christensen was presented to this Court, one of the issues raised, and met, was whether the trial court had erred in allowing “ ‘the State’s Attorney to comment unfavorably upon the absence of a defense witness who ostensibly could have corroborated Appellant’s version of the facts.’ ” 21 Md. App. at 435 .

Although the remarks there went considerably beyond those made in the case we now consider, we noted in our Christensen that: “The remarks were certainly not prejudicial and hardly ‘unfavorable’ ” Id. at 435. The prosecutor’s remarks there, as those here, “did little more than attempt to neutralize the possibility of a favorable inference.” 21 Md. App. at 437 . In this case appellant himself injected the issue by alibi testimony, indicating that he was with “Pee Wee” Young far removed from the crime scene. 4 It is certainly legitimate argument for the prosecutor to ask, then, why the witness was not there to say so. In holding that such argument was not improper we pointed out that: “Generally, broad latitude is given counsel in argument and we find nothing in this one prejudicial to Appellant.” Id. at 437 .

As we have pointed out, our reversal in Christensen by the Court of Appeals was expressly narrowed to the failure of the trial judge to give the requested instruction, and no such instruction was requested by Pierce in this case. We ⁶⁶¹ further note that although the Court of Appeals was cognizant of the argument issue, 274 Md. at 138-139 , it pointedly avoided reversing our holding on that issue. Nor did it criticize either our reasoning or our language in that regard and, we know from experience, that the Court of Appeals is not hesitant to point out the error of our ways when they do not agree with our reasoning or our result. We have not changed our opinion that when an accused rests an alibi on an absent witness, it is not improper to argue the reasonableness of expecting the accused to justify or explain the absence.

We hasten to add, however, that such argument is equally available against the State where the absent witness is said by the State to have been an accomplice. In reading the Court of Appeals’ Christensen, appellant was apparently misled into applying it over-broadly to cover his argument complaint, because of the reasoning behind the Wharton exception which the Court adopted as the Maryland rule. Judge Smith said: “The reason behind the rule is not difficult to divine. Defense counsel have been known to believe that the military’s advice to its personnel that in the event of capture one should disclose only name, rank, and serial number has its merits in criminal cases in that what one does not say cannot be used against him.

Accordingly, counsel for Christensen probably was correct in believing that, if Paine were summoned to the witness stand by Christensen, Paine’s counsel might well advise him to invoke his constitutional right against self-incrimination, notwithstanding the fact that his testimony might serve to corroborate that of Christensen and that if he testified Paine might claim that the incriminating testimony of the prosecutrix was untrue. Under the facts of this case, a defendant might well be damaged if an accomplice or codefendant were called to the stand and then did not testify, claiming his privilege against self-incrimination.” 274 Md. at 140 . ⁶⁶² Such rationale would, at first blush, appear applicable to argue the rule’s inference, as well as failure to instruct the prohibitive exception, in an appropriate case. Yet there is a clear distinction between that which a trial judge must instruct a jury when requested and that which counsel may argue to it. Providing that the court’s instruction may be given any time after the close of evidence, Md. Rule 756 e. expressly points out that: “The giving of such instructions prior to the argument of counsel shall not preclude counsel from arguing to the contrary.” (emphasis added).

If it is not apparent from that rule that the Court of Appeals recognizes the right of counsel to argue legal presumptions or legitimacy of inferences which may be contrary to Maryland law, the Court of Appeals’ cases make it abundantly clear. They rest upon Maryland’s unique blessing or burden, that “the Jury shall be the Judges of Law, as well as facts”, Md. Const., Art. XV, § 5; from which it reasonably follows, that if the jury is the judge of the law, legal argument may be made to it. Schanker v. State, 208 Md. 15, 21 ; Wilkerson v. State, 171 Md. 287, 290 ; Samson v. State, 27 Md. App. 326 . The right to argue conflicting interpretations of the law, or the application thereof in dubious factual situations, e.g., Schanker v. State, supra, has been held proper even in the face of instructions to the contrary, Wilson v. State, 239 Md. 245, 255-256 , without regard to Md. Rule 756 e.

Because we have so recently spoken upon the right of counsel to argue relevant law to the jury (as well as the limitations upon that right), Samson v. State, supra, suffice to say the right is well preserved, both by the Court of Appeals and by this Court, as long as Maryland retains its unique constitutional provision. Since we consider the overruling of appellant’s objections to the prosecutor’s argument proper, it follows that the judge did not abuse his discretion in denying a mistrial. We carry coals to Newcastle by adding that he did not err by failing to strike the arguments, sua sponte. Absent a request ⁶⁶³ for an instruction requesting the reverse missing witness rule adopted by Christensen, swpra, there was no error by the court below.

Jackson Because appellant Jackson’s defense did not rely upon an alibi which the missing witness Young might have supported or controverted, Pierce’s complaint does not include appellant Jackson, who raised three of his own assignments of error: “I. The Court erred by excluding a defense witness from testifying because of a violation of the Sequestration Rule.

II

The Court erred in not promptly and properly advising the jury as to the State’s unsubstantiated question about the Appellant’s prior record.

III

The Court erred in allowing the State to improperly argue to the jury.” I Violation of Sequestration Appellant called Paula Jackson as a witness but admitted to the judge that she had been present in court in violation of sequestration, Md. Rule 753, which had been invoked at the request of appellant. A preliminary interrogation disclosed that she had been in the courtroom throughout the entire trial and had heard all of the testimony in the case. The court declined to permit her to testify, pointing out that: “ ... the purpose of Rule 753, the sequestration rule, is to prevent one prospective witness from being taught by hearing antíther witness’ testimony. The application of the rule is to avoid any artificial harmony of testimony that would prevent the trier of the facts from truthfully weighing all the testimony, and it is also used to avoid any outright manufacturing of testimony. ⁶⁶⁴ The rule was exerted on behalf of the parties in this case.

The witness has been in this courtroom since the inception of the trial. The motion to not permit the witness to testify by the State, after having been called by the defendant, is granted and the objection is sustained.” In McKnight v. State, 33 Md. App. 280 (1976), we again pointed out that whether a witness’s violation of sequestration should preclude that witness from testifying is a matter for the sound discretion of the trial judge. We find no abuse. Appellant preferred that her testimony would substantiate the testimony of appellant — which she had heard.

Such edification is precisely that which sequestration was intended to guard against. After reviewing all of the relevant factors in the record, we hold that the court acted within the limits of its discretion. II Sua Sponte Instructions During the course of cross-examining appellant Jackson, the prosecutor asked: “Are you the same Norman Kemp Jackson convicted on November 4, 1973, of the charge of carrying a pistol without a license?” A timely objection was sustained when it was pointed out (at the bench) that although convicted, appellant had not yet been sentenced. See Md. Code, Cts.

Art., § 10-905. Appellant now complains because the court did not advise the jury immediately, “that the State did not mean to intimate that the appellant had been convicted of a crime.” Appellant relies upon Woodell v. State, 2 Md. App. 433, 439 , where we held that when cross-examining on