Simpson v. State

Moylan, J., delivered the opinion of the Court. The appellant, Lorenzo Simpson, was convicted by a Baltimore City jury, presided over by Judge Sol J. Friedman, of armed robbery. The single contention he raises upon this appeal is that the trial court erred in giving an instruction on the missing witness rule. The facts were such that, barring an appropriate explanation as to why a witness was not called, the missing ³⁷⁹ witness instruction would have been appropriate.

The robbery victim, Joseph Frazier, Jr., testified that he, a prospective purchaser of marihuana, met the appellant immediately outside the home of a prospective seller of marihuana. Conversations ensued between Mr. Frazier and the appellant about the possibility of Mr. Frazier’s purchasing some cocaine. According to Mr. Frazier, the two made a trip to Mr. Frazier’s home where Mr. Frazier picked up $300. The appellant ultimately took the $300 from Mr. Frazier at knifepoint.

Frazier immediately made a complaint to the police describing the appellant, the weapon, the robbery and the automobile. Within a relatively few minutes, the police spotted the automobile and stopped it. The appellant and two other persons were in the automobile. The appellant was arrested.

The knife was recovered from the front seat of the automobile. Three hundred dollars was recovered from the person of the appellant. The appellant took the stand and gave an entirely different explanation for the loss of money by Mr. Frazier. According to the appellant, Frazier was interested in purchasing heroin and sought information from the appellant to effectuate that purchase.

The appellant introduced Frazier to a man by the name of George. According to the appellant, Mr. Frazier did give the appellant a $100 bill in order to purchase some liquor from a liquor store. The seller “George” then approached the car wherein the appellant and Mr. Frazier were sitting. “George” was in the company of another individual named Ricky Deese. Mr. Frazier received the ostensible narcotics from and delivered the money to this Ricky Deese.

Frazier and the appellant drove off. Frazier tested the narcotics, realized that he had been tricked by being delivered a white powder which did not contain any narcotics and became very angry. An argument ensued between the appellant and Mr. Frazier and Mr. Frazier left the automobile. The so-called “missing witness”' had to be either “George” or Ricky Deese.

The question of who was being referred to as a “missing witness” was made very clear in the closing argument of the prosecutor: ³⁸⁰ “Now, the Judge is going to instruct you as to a law called the missing witness rule. Now, the missing witness rule says that the failure to call... Now, the Judge will instruct you and this is my argument as to what this rule is. The failure to call a material witness raises a presumption that the testimony of this person would be unfavorable.

All right. Why do I mention this now? Because I have heard two names mentioned by the Defendant, this Ricky Deese and George. I asked him, ‘Who is Ricky Deese?’ He says, ‘Ricky Deese lives in my neighborhood,’ when I asked him where he lives.

This is supposedly the man that was, Ricky Deese and a George were supposedly the two men that weré involved in the Defendant’s part of the story by giving Mr. Frazier heroin and so forth. Where is Ricky Deese today? Where is this George? If this is exactly what happened, why didn’t the Defendant bring him in to testify that this is what happened?

Why? The missing witness rule. The missing witness rule says, as I stated, failure to call a material witness. I think he is material.

I think both are material. There is question that the Defendant could have found them. He says, ‘He lives in my neighborhood, Ricky Deese,’ and he knows where George lives. That’s no reason.

Why isn’t he here to so testify and help this man if that is what happened? Failure to call a material witness raises a presumption that their testimony would be unfavorable. The Judge will instruct you as to this.” The appellant made known his objection to this discussion of the law even from the mouth of the assistant prosecutor. The court overruled him.

The court in its own instructions said the following: “Evidence has been presented in this trial which indicates that an available witness who had knowledge of the facts in issue in this case was not ³⁸¹ called to testify. You are instructed that if either the State or the Defendant failed to call such a witness a presumption arises that his testimony would have been unfavorable to the party who did not call