Samba v. State

WOODWARD, J. Following a jury trial in the Circuit Court for Prince George’s County, Kasedaa Samba, appellant, was convicted of transporting a handgun on a roadway, possessing a regulated firearm after conviction of a disqualifying crime, driving an unregistered vehicle, failing to display two registration plates, driving without a license, and driving an uninsured vehicle. Appellant was sentenced to three years, with all but eighteen months suspended, plus three years of supervised probation, ⁵¹¹ for transporting a handgun on a roadway. Appellant was also sentenced to five years, with all but eighteen months suspended, plus three years of supervised probation, for possessing a regulated firearm after conviction of a disqualifying crime, to be served concurrently with the first sentence. Sentences on the vehicle offenses were suspended generally.

In this appeal, appellant challenges his handgun convictions, raising the following two questions for our review: I. Did the court err in instructing the jury that there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case?

II

Is the evidence sufficient to sustain appellant’s convictions for transporting a handgun on a roadway and possession of a regulated firearm after conviction of a disqualifying crime? Applying lessons from the Court of Appeals’ recent decisions in Atkins v. State, 421 Md. 434 , 26 A.3d 979 (2011), and Stabb v. State, 423 Md. 454 , 31 A.3d 922 (2011), we shall hold that in the circumstances presented here, the trial court erred in giving a so-called “anti-CSI effect” jury instruction. Because (1) there was no defense “overreaching” warranting such an instruction as a curative measure, (2) the trial court failed to instruct the jury to consider the lack of forensic evidence in evaluating reasonable doubt, and (3) the State used the instruction to undermine appellant’s legitimate “failure to fingerprint” defense, appellant’s weapons convictions must be reversed. FACTS AND LEGAL PROCEEDINGS At trial, it was undisputed that a loaded and operable revolver was found underneath the seat of the car that appellant was driving when he was arrested on November 12, 2009.

The State presented testimony by Prince George’s County Police Officer Phillip Martin that, while patrolling the parking lot of a Forestville apartment complex that evening, he stopped appellant’s Mitsubishi 3000 GT because it did not have ⁵¹² a front license plate. Appellant was driving and had a passenger in the front seat. The officer obtained Maryland identification cards from appellant and his passenger, then asked appellant to move his vehicle into a parking space. As appellant was backing his car into a spot next to a larger vehicle, Officer Martin lost sight of appellant’s vehicle for approximately fifteen seconds.

The officer then discovered that the passenger had left the scene. Because appellant did not have a driver’s license, proper vehicle tags, current vehicle registration, or proof of vehicle insurance, his vehicle was impounded. During an inventory search, Officer Martin reached underneath the driver’s seat from the back seat and found a silver revolver “jammed up towards the middle toward the front of the seat.” The handgun was loaded with five bullets, and test-firing later established that it was operable. Appellant’s defense to the weapons charges was that his passenger was merely a “neighborhood” acquaintance to whom he was giving a ride in exchange for gas money, and that it was the passenger who, “unbeknownst” to appellant, put the handgun under the driver’s seat before he “bailed out.” Appellant asserted that, because he did not know about the gun, he did not have the mens rea necessary to convict him of either possessing the weapon after conviction for a disqualifying crime or knowingly transporting the gun on a public roadway.

In his opening statement, defense counsel asked the jury to “please consider not only what evidence the State shows you, but what evidence is missing. I think there’s going to be quite a bit missing in this case.” During Officer Martin’s cross-examination, defense counsel elicited testimony that, although the police department has technicians who can recover and analyze fingerprint and DNA evidence and appellant’s fingerprints were available following his arrest, Officer Martin did not conduct or request any such testing on the gun or bullets. On re-direct, Officer Martin explained that police policy did ⁵¹³ not require fingerprinting or DNA sampling of firearms and that it was not his “common practice” to do so. At the State’s request and over appellant’s objection, the trial court, in its instructions to the jury before closing arguments, advised the jury as follows: During this trial you have heard testimony of witnesses and may hear arguments of counsel that the State did not utilize a specific investigative technique or scientific test.

However, I instruct you that there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove this case. Your responsibility as jurors is to determine whether the State has proven based solely on the evidence presented the defendant’s guilt beyond a reasonable doubt. (Emphasis added). In closing argument, the State repeatedly invoked this jury instruction.

The prosecutor, after emphasizing the significance of the evidence that the gun was found in appellant’s vehicle under his seat, addressed the lack of fingerprint or DNA evidence to connect appellant to the gun. The prosecutor stated: You heard in the defendant’s cross examination of the State’s witness this business about fingerprints. You take fingerprints? Did you recover DNA?

Well, the Officer told you and you also heard from the Judge telling you that the State is not required to use any specific scientific investigative technique. The Officer doesn’t have to. He’s not required by law or his police department policy to fingerprint the gun. He’s not required to recover DNA.

That’s something that you watch on TV, but on the date today, it’s not required and it’s not done. He said I never recovered DNA or fingerprints from the gun. He doesn’t do that. Nor in the instructions that you heard from the Judge, you don’t hear one of those instructions that says we have to produce any fingerprint evidence in order for ⁵¹⁴ you to find him guilty.

There’s no element of the offense that says that that’s something that we have to do. (Emphasis added). Defense counsel, at the end of appellant’s closing argument, acknowledged the jury instruction but asked the jury to conclude that the State should have performed fingerprint tests on the weapon as a matter of “fairness.” Now, the fingerprints, the DNA. Let’s think about that for a minute.

The Judge has said that as a matter of law the State is not required to show you fingerprints, but I think it’s just as an element of fairness you ought to require the State to show you fingerprints. The State is saying to you in effect [appellant] knew that gun was there. [Appellant] put that gun there by inference. Well, why don’t you require, and I think you should, the State could do a very simple thing. Test the gun.

Test the bullets for fingerprints. See if there’s any proof at all that [appellant] ever handled that gun. There is no such proof. And I think what you ought to require of the State, but you ought to require of the police before you convict someone of a serious crime is proof, which is readily obtainable, and it is there.

It’s something that they can certainly bring here. They don’t even bother to do that. The gun was under the seat so that means it’s him. I think you ought to require those things.

(Emphasis added). In its rebuttal closing, the State again invoked the “anti-CSI effect” instruction to counter appellant’s “missing evidence” defense. At the outset, the prosecutor argued: I’ll just start since it’s the last point that was made in saying that you are required to apply the law. You’re not allowed to make up your own sense of what the law is in this case.

You were selected as jurors in this case because when the Judge asked you as part of voir dire whether you would be able to apply the law that he gave you, you indicated that you would be able to apply the law. Not some magical theory or defense theory or interpreta ⁵¹⁵ tion of the law, but what the law is. And the Judge already told you that the State as a matter of law, is not required to produce fingerprints or DNA evidence. Let me get that out of the way.

It’s not required. (Emphasis added). Later, the State concluded by re-emphasizing the jury’s obligation, when determining whether appellant had the requisite knowledge of the gun, to apply “the law that you’ve heard,” “[n'Jot this magical thing that you are pulling out of the air.” We shall add facts as they pertain to our discussion of the issues raised by appellant. DISCUSSION I. The “Anti-CSI Effect” Jury Instruction Appellant argues that “[t]he trial court erred in instructing the jury that there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case.” Because an understanding of the evolving jurisprudence regarding the use of such “anti-CSI effect” jury instruction is essential to our resolution of this appeal, we shall examine first the trilogy of Maryland cases on this topic: Evans v. State, 174 Md.App. 549 , 922 A.2d 620 , cert. denied, 400 Md. 648 , 929 A.2d 890 (2007), Atkins v. State, 421 Md. 434 , 26 A.3d 979 (2011), and Stabb v. State, 423 Md. 454 , 31 A.3d 922 (2011). 1 We shall set the stage for our discussion by addressing the origin and purpose of an “anti-CSI effect” jury instruction.

The term “anti-CSI effect” as applied to jury instructions ⁵¹⁶ stems from “[t]he popularity of forensic dramas” on television, including the program CSI: Crime Scene Investigation and its spin-off progeny. Atkins, 421 Md. at 457-58 , 26 A.3d 979 (Harrell, J., concurring). Judge Harrell stated in his concurring opinion that these forensic investigation programs have garnered increased media attention in recent years, with speculation that the shows produced a “CSI effect” that may skew jury verdicts, most frequently in criminal law matters. The theory behind the so-called “CSI effect” is that the millions of viewers of forensic dramas develop unrealistic expectations about the availability and results of specific scientific forensic techniques, such as DNA sequencing, fingerprint analysis, and ballistics analysis, increasing the likelihood of a finding of “reasonable doubt” where such forensic evidence is not produced, and, thus, an increased likelihood for an acquittal or hung jury....

Although debate continues regarding whether a “CSI effect” actually exists, among researchers that believe it does, the actual effect on jurors in the courtroom is a subject of great debate. Id. at 458-59 , 26 A.3d 979 (Harrell, J., concurring) (citations and footnote omitted). See generally Stabb, 423 Md. at 467-70 , 31 A.3d 922 (reviewing published studies, articles, and cases considering the “CSI effect”). “Despite the divergence” among those studying the issue, there is no question that “the so-called ‘CSI effect’ is injected into American jurisprudence and has led to changes in model jury instructions, in prosecution tactics, and in both voir dire questions and jury instructions given by judges.” Atkins, 421 Md. at 461 , 26 A.3d 979 (Harrell, J., concurring) (footnote omitted). Among the “defensive prosecution techniques” designed “to curb the possible ‘CSI effect’” are requests for “specialized jury instructions” like the one challenged in this appeal.

See id. at 462 , 26 A.3d 979 (Harrell, J., concurring). Such instructions have been referred to variously as “anti-CSI effect,” “no duty,” and “investigative or scientific techniques” instructions. Id. at 437 , 26 A.3d 979 ; id. at 456 n. 1, 26 A.3d 979 (Harrell, J., concurring). ⁵¹⁷ Evans v. State The first case to emerge in this area was this Court’s opinion in Evans . Evans and a co-defendant were convicted of selling heroin to an undercover police detective, who was the State’s sole witness to the transaction. 174 Md.App. at 552-53, 555-56 , 922 A.2d 620 .

On cross-examination, the detective testified that, although the police department had audio and video recording equipment available to record potentially illegal drug transactions, he did not arrange for his transaction with appellant to be recorded because he did not have authority to order the use of the recording equipment. Id. at 556 , 922 A.2d 620 . The trial court gave the following “anti-CSI effect” jury instruction just before closing arguments began: During this trial, you have heard testimony of witnesses and may hear argument of counsel that the State did not utilize a specific investigative technique or scientific test. You may consider these facts in deciding whether the State has met its burden of proof.

You should consider all of the evidence or lack of evidence in deciding whether a defendant is guilty. However, I instruct you that there is no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case. Your responsibility as jurors is to determine whether the State has proven, based on the evidence, the defendants’ guilt beyond a reasonable doubt. Id. at 562 , 922 A.2d 620 (emphasis added).

Thereafter, defense counsel for both Evans and his co-defendant argued in closing that the State’s failure to present either recorded evidence of the transaction or fingerprint evidence created reasonable doubt. 2 ⁵¹⁸ On appeal, Evans challenged the jury instruction on the ground that it improperly “relieved the State, in the minds of the jurors, of the burden to establish guilt beyond a reasonable doubt.” Id. at 562 , 922 A.2d 620 . Noting the dearth of “appellate attention” given to the common defense strategy of “point[ing] to evidence not offered by the State,” including “the lack of fingerprint evidence,” this Court concluded that, although Evans failed to preserve his reasonable doubt objection for appellate review, the challenged instruction was “not substantially different in substance from” an instruction affirmed by the Second Circuit in United States v. Saldarriaga, 204 F.3d 50 (2d Cir.2000). See Evans, 174 Md.App. at 552, 562, 566, 570 , 922 A.2d 620 . 3 We observed that “[i]n both ⁵¹⁹ instances ... the court’s instructions made clear that the State was not relieved of its burden to establish guilt beyond a reasonable doubt.” Id. at 570 , 922 A.2d 620 . This Court concluded that the instruction given in Evans’ trial was a correct statement of the law, was applicable to the facts in the case and was not fairly covered by other instructions given.

The robust and vehement closing arguments of counsel regarding the failure to employ audio or video surveillance equipment and the lack of any other investigative or scientific evidence produced by the State warranted giving the instruction. In sum, we are satisfied that the State’s burden in this case was in no way compromised by the admonition that there was no responsibility, in law, for the State to produce evidence simply because it was available, even though such ⁵²⁰ evidence might have made the discharge of the jury’s duty easier. That having been said, we stress that the salutary-effect of the instruction is found in the advisement that the absence of such evidence should be factored into the juror’s determination of whether the State has shouldered its burden if, and only if, the absence of such evidence, itself, creates reasonable doubt. The absence of evidence, available to the State, may not, ipso facto, constitute reasonable doubt.

The risk is greatest that such an instruction will run afoul of the prohibition against relieving the State of its burden where the instruction is predominant in the overall instructions and its relation to the reasonable doubt standard unclear. Consequently, the preferable practice is for the court’s instruction to be promulgated in conjunction with the explication of the State’s burden to prove the defendant guilty beyond a reasonable doubt. Id. at 570-71 , 922 A.2d 620 (emphasis in original). Thereafter, the Court of Appeals issued its decisions in Atkins and Stabb .

The opinions in those two cases “did not overrule explicitly the holding in Evans , but created a new basis for evaluating the giving of ‘anti-CSI effect’ jury instructions,” by establishing that instructions like those given in Evans, Atkins, and Stabb , although not improper per se, should not be propounded unless the defense does something to warrant the instruction as a curative measure. See Stabb, 423 Md. at 462-63 , 31 A.3d 922 . Atkins v. State In Atkins , the defendant was convicted of assaulting three people with a knife during a fight. 421 Md. at 437-39 , 26 A.3d 979 . The type of knife used in the altercation was critical to both the prosecution and the defense.

One of the prosecution witnesses testified that, just before one of the victims was stabbed, “he saw Atkins reach into his pocket and apparently remove something” that the witness could not describe. Id. at 438 , 26 A.3d 979 . Atkins claimed that he used a folding knife from his pocket in self-defense, then threw that knife away. ⁵²¹ Id. at 439-40 , 26 A.3d 979 . The State, on the other hand, maintained that Atkins used a 12-inch “Rambo-style” knife, featuring a non-folding six-inch blade, which had been seized from his home after the fight.

Id. at 439 & n. 3, 26 A.3d 979 . Over Atkins’ objection, the knife was admitted into evidence. Id. at 440 , 26 A.3d 979 . No scientific or forensic tests were performed on the knife, and there was no testimonial evidence linking it to the assaults.

Id. at 439 , 26 A.3d 979 . Defense counsel cross-examined the police officer who seized the knife about the lack of forensic testing for blood, DNA, or fingerprints on the weapon. Id. at 440-41 , 26 A.3d 979 . At the State’s request, over Atkins’ objection, the trial court propounded the same “anti-CSI effect” instruction that was given in Evans , also at the close of the evidence and before closing arguments.

Id. at 441-42, 26 A.3d 979 . The Court of Appeals held that the trial court abused its discretion in giving that instruction, because it “was not proper under the facts of the case, was fairly covered in the instructions actually given, and, rather than solving a problem arising from the circumstances of the case, created a problem that unfairly prejudiced the defendant’s case.” Id. at 447 , 26 A.3d 979 . Writing for the Court, Judge Greene distinguished Evans on “multiple” grounds, the last of which was as follows: Finally, in Evans , defense counsel gave “robust and vehement closing argument” in addition to extensive cross-examination on the issue of the failure of police to record the transaction. The trial court stated explicitly that the cross-examination warranted the instruction, and the Court of Special Appeals also relied on the closing argument to justify the use of the instruction.

Thus, the intermediate appellate court viewed the instruction as necessary to correct defense counsel’s argument that the State was required to produce certain evidence. In the present case, defense counsel briefly cross-examined on the issue, but did not argue lack of evidence in closing. Unlike in Evans , where counsel distorted the law, thus requiring a curative instruction, counsel in the present case merely pointed out on cross-examination what proce ⁵²² dures were available but did not incorrectly state the law or the State’s burden. Id. at 450-51, 26 A.3d 979 (emphasis added) (citations omitted).

The Court concluded that the “anti-CSI effect” instruction given in Atkins’ case improperly relieved the State of its burden of proof and undermined the defense by commenting on the weight of the evidence. Id. at 453-54 , 26 A.3d 979 . The Court explained its decision as follows: As discussed above, the foot long, non-folding black knife was the centerpiece of the State’s case and thus the instruction was of critical importance. The primary concern when evaluating whether a trial judge abused his or her discretion in giving this type of instruction is the risk that “such an instruction will run afoul of the prohibition against relieving the State of its burden where the ... relation [of the instruction] to the reasonable doubt standard [is] unclear.” Evans, 174 Md.App. at 571 [, 922 A.2d 620 ].

This case exemplifies that risk; the instruction as worded effectively undermined the defense theory of self defense, and relieved the State of its burden to prove guilt beyond a reasonable doubt. [D]efense counsel had every right to inquire about steps the State undertook to connect the defendant and the particular knife found in Atkins’s home to the crime. As we have held previously, a defendant has the right to raise a defense based on the lack of evidence presented by the State. Sample v. State, 314 Md. 202, 207, 209 [ 550 A.2d 661 ] (1988). We stated in Sample that when “the State has failed to utilize a well-known, readily available, and superior method of proof to link the defendant with the criminal activity, the defendant ought to be able to comment on the absence of such evidence.” Sample, 314 Md. at 207 [ 550 A.2d 661 ] (1988) (interpreting Eley v. State, 288 Md. 548 [ 419 A.2d 384 ] (1980) (which held that the trial court erred “in precluding counsel from argu ⁵²³ ing the logical inferences from the facts and gaps in [the] evidence,” Eley, 288 Md. at 551 [ 419 A.2d 384 ], and that under the circumstances, “it is not unreasonable to allow the defendant to call attention to [the State’s failure to produce fingerprint evidence],” Eley, 288 Md. at 555 [ 419 A.2d 384 ])).

In order to probe into the utility of scientific testing to connect the knife introduced by the State to the crimes charged, defense counsel engaged in cross-examination of the detective, asking whether the police department was capable of looking for skin cells or blood on the knife, and whether such testing was performed in this case. The examination was a legitimate, brief, and reasonable inquiry into the connection between the knife and the crime.... The instruction did not adequately protect Atkins’s right to a fair trial because the instruction invaded the province of the jury and constituted commentary on the weight of the evidence, which comment was improper. As stated by Atkins, “[i]t was the jury’s function to determine what inferences were to be drawn from the police [officer’s] failure to test the knife for DNA evidence.

But the trial judge usurped this role.” Basically, the instruction directed the jury to ignore the fact that the State had not presented evidence connecting the knife to the crime, implying that the lack of such evidence is not necessary or relevant to the determination of guilt, and to disregard any argument by defense to the contrary. In the words of Petitioner’s counsel at oral argument before this court, “the instruction effectively plugged a hole in the State’s case.” Id. at 451-53, 26 A.3d 979 (emphasis added) (footnote and some citations omitted) (alterations in original). The Court of Appeals “emphasize[d] that our conclusion that the instruction as given was invalid is based on the particular facts in this case, and we do not hold that an investigative techniques instruction would never be proper.” Id. at 454 , 26 A.3d 979 . Citing Evans , the Court stressed that “the key to producing a valid jury instruction is ensuring that ⁵²⁴ the State is properly held to its burden, and any instruction regarding what the State must produce in proving its case must be properly related to the reasonable doubt standard.” Id. at 454, 26 A.3d 979 .

In a concurring opinion joining in “the judgment and most of the reasoning of the Majority,” Judge Harrell, joined by Judges Battaglia and Murphy, wrote “separately to consider a broader array of situations where ‘anti-CSI effect’ or ‘no duty* instructions may be appropriate, beyond more than the modest discussion in the Majority opinion.” Id. at 456 , 26 A.3d 979 (Harrell J., concurring) (footnote omitted). After reviewing comparable cases from federal and other state courts, Judge Harrell observed that “[n]o duty” instructions recognize that defense tactics emphasizing repeatedly—often to the point of chastising law enforcement officials—the failure to use specific investigative techniques may influence jurors inappropriately. As the colloquial name of this type of instruction implies, “no duty” instructions are meant to inform the jury that law enforcement “was under no duty” to gather certain evidence, such as fingerprints, or DNA, in cases where the defense implies improperly that the government was under such a duty. Further, when a defendant argues or implies that a failure to undertake specific scientific tests or procedures violated standard law enforcement procedures, or that such procedures would have produced evidence favorable to the defendant, a “no duty” instruction has been held to be appropriate....

The government, therefore, is not entitled to this instruction every time the defense points out that there is a lack of forensic evidence in a case. Without an anchor in the evidence—showing that police policy was not violated in failing to utilize such investigative techniques—or “defense argument that the instruction is intended to counter, the ‘no duty’ instruction runs the risk of confusing the jury by seeming to contradict the admonition in the reasonable doubt instruction____” ⁵²⁵ Id. at 464-65 , 26 A.3d 979 (Harrell J., concurring) (emphasis added) (citations omitted). Stabb v. State Three months after the Atkins decision, the Court of Appeals again reversed a criminal conviction based on an improperly given “anti-CSI effect” instruction in Stabb , with Judge Harrell writing the opinion for a unanimous Court. Stabb was convicted of inappropriately touching the seven-year-old daughter of his ex-girlfriend by putting his hand on her “private” inside her underwear. 423 Md. at 457 , 31 A.3d 922 .

During the trial, defense counsel elicited testimony from the social worker who interviewed the child that the girl was not referred for a medical examination because she “did not disclose that penetration occurred.” Id. at 458 , 31 A.3d 922 . When defense counsel “pressed” the social worker “about the potential for obtaining any kind of physical evidence had a SAFE [Sexual Assault Forensics Exam] been performed,” the witness testified “that there was no possibility of the continued existence ... of physical evidence as it had been several days between the assault and [the child’s] interview,” and the child had bathed and changed clothes during that interim. Id. at 458-59 , 31 A.3d 922 . Stabb testified on his own behalf, denying the charges.

Id. at 461 , 31 A.3d 922 . In addition, he presented testimony (1) from the victim’s mother and grandmother indicating that appellant’s relationship with the victim’s mother had soured shortly before the incident, (2) from an alibi witness, and (3) from one of the police officers involved in the case admitting that DNA evidence might be recoverable from skin-to-skin contact, but describing the prospect of obtaining such evidence in this instance as “very minimal.” Id. at 459-62 , 31 A.3d 922 (internal quotations omitted). Over defense objection, at the close of the evidence and before closing arguments, the trial court propounded the same “anti-CSI effect” jury instruction that was given in Evans and Atkins. Id. at 460-61, 31 A.3d 922 .

In closing argument, defense counsel “covered briefly” the lack of physical evidence, ⁵²⁶ but focused her reasonable doubt arguments “heavily on the State’s reliance on a single child witness and the inconsistent recollections of the investigating officers and the State’s other witnesses.” Id. at 462 , 31 A.3d 922 . The Court of Appeals held “that, although we remain persuaded that ‘anti-CSI effect’ jury instructions are not improper per se, under the facts of this case, the trial court abused its discretion in providing essentially a preemptive jury instruction that there was no legal requirement for the State to utilize any specific investigative technique or scientific test to prove its case.” Id. at 462-63 , 31 A.3d 922 (internal quotations omitted). “Without resolving whether the form of the jury instruction given in the present case was a correct statement of the law,” the Court concluded that “it nonetheless was given improperly in the circumstances of the case.” Id. at 470 , 31 A.3d 922 . The Court observed that “[t]he pertinent jury instruction at issue in the present case is identical to the instruction given in Atkins ” and that, although the lack of scientific evidence was not as “critical” to Stabb’s defense as it was to Atkins’s defense, “[njonetheless, [it] was an integral part of the defense’s theories.” 4 Id. at 470-71 , 31 A.3d 922 . The Court concluded that, as in Atkins , the instruction was improperly given, explaining: Another problem with the “anti-CSI effect” jury instruction in the present case is that it was given preemptively, i.e., before any explicit