Thompson v. State

BATTAGLIA, J. The case sub jtidice presents us with the issue of whether a jury instruction on flight should ever be given in a criminal ²⁹⁴ case. Although we determine that flight instructions are not per se improper, we conclude, nevertheless, that the trial judge abused his discretion in the case at bar in providing a flight instruction to the jury. Facts On July 17, 2002, Noah Gottesman, William Beaver, and Bradley Kelly were walking back to their hotel near the Inner Harbor in Baltimore City after dinner. On the 1300 block of East Pratt Street, two men on bicycles approached the trio.

One of the men said, “I’ll make this easy. Put your wallets on the ground.” Messrs. Gottesman, Beaver, and Kelly did not stop. The would-be robber pulled a gun, and Messrs.

Gottesman, Beaver, and Kelly ran as at least five shots were fired, one of which hit Mr. Gottesman in the right arm. At the end of the block, two men in a sports utility vehicle stopped and offered to take Messrs. Gottesman, Beaver, and Kelly to the hospital, an offer which was accepted. Police officers met them at the hospital.

After interviewing Messrs. Gottesman, Beaver, and Kelly, the officers broadcast-ed that they were looking for an African-American male with corn rows, who was approximately twenty-five years old, wearing a baggy white t-shirt and jeans or jean shorts on a bicycle accompanied by another person. Detective Frank Mundy arrived at the location of the shooting and saw Warren Thompson, the Petitioner, who fit the broadcast description, on a bicycle. Detective Mundy ran toward him, identified himself as a police officer, and yelled for him to stop.

Mr. Thompson saw Detective Mundy and continued to pedal faster away from him. Detective Mundy lost sight of him, but within five minutes, other police officers caught Mr. Thompson within a mile. When he was apprehended, the police recovered a significant quantity of cocaine on Mr. Thompson. Mr. Thompson was charged with three counts each of attempted first degree murder, attempted second degree murder, first degree assault, second degree assault, use of a ²⁹⁵ handgun in the commission of a felony or crime of violence, reckless endangerment, and one count each of wearing, carrying, or transporting a handgun illegal possession of a regulated firearm, possession of a controlled dangerous substance with intent to manufacture and distribute, and possession of a controlled dangerous substance At a pretrial hearing held on July 15, 2003 in the Circuit Court for Baltimore City, Mr. Thompson argued that, due to some anomalies in the chain of custody of the cocaine recovered from him when he was arrested, the drugs, the results of the chemical analysis conducted by the police and any statements made by Mr. Thompson concerning the drugs should be suppressed.

The State opposed Mr. Thompson’s motion and asserted that the drugs were admissible, regardless of any issues in the chain of custody, because Mr. Thompson made statements to the police acknowledging his possession of the drugs. The Circuit Court took the matter under advisement and two days later, immediately prior to the impaneling of the jury, ruled that the cocaine, the results of the chemical analysis, and those portions of Mr. Thompson’s statement to police regarding his possession of the drugs were inadmissible. The court also dismissed the charges arising out of his possession of controlled dangerous substances. During the trial, the prosecution called Messrs.

Gottesman, Beaver, and Kelly, each of whom testified concerning the events on July 17, 2002 and identified Mr. Thompson as the shooter. The prosecution also called Baltimore City Detective Frank Mundy, who interviewed the victims and Mr. Thompson after his arrest. Detective Mundy testified that Mr. Thompson fled on his bicycle when Detective Mundy approached and identified himself as the police. The prosecution also played a redacted version of a tape recording of Detective Mundy and Baltimore City Detective Mike Debord’s conversation with Mr. Thompson.

The defense called Detective Debord, who testified concerning Mr. Gottesman’s failure to identify Mr. Thompson as the shooter after viewing a photo array. Mr. Thompson also called Mr. Joseph Harant, a criminalist with the Baltimore City Police Department Laboratory in the ²⁹⁶ Trace Analysis Unit, who testified that there was no gunshot residue on Mr. Thompson’s hands. At the close of the case, included in the instructions given to the jury was the following instruction on flight: A person’s flight immediately after the commission of a crime or after being accused of committing a crime is not enough by itself to establish guilt, but it is a fact that may be considered by you as evidence of guilt. Flight under these circumstances may be motivated by a variety of factors, some of which are fully consistent with innocence.

You must first decide whether there is evidence of flight. If you decide there is evidence of flight, you must then decide whether the Defendant’s flight shows consciousness of guilt. On July 21, 2003, the jury acquitted Mr. Thompson of the counts of first degree assault and second degree assault relating to Messrs. Beaver and Kelly, but was unable to reach a verdict on the remaining counts of attempted murder, assault, use of a handgun in the commission of a crime of violence, reckless endangerment, wearing, carrying, or transporting a handgun, and illegal possession of a regulated firearm with respect to Messrs.

Beaver and Kelly. The jury was unable to reach a verdict on any of the charges concerning Mr. Gottesman. The State elected to retry Mr. Thompson only with respect to the charges relating to Mr. Gottesman, which included one count of: attempted first degree murder, attempted second degree murder, first degree assault, second degree assault, reckless endangerment, use of a handgun in the commission of a felony or crime of violence, wearing, carrying, or transporting a handgun, and possession of a regulated firearm after having been convicted of a disqualifying crime. As with the first trial, the tape recording of Mr. Thompson’s statements to the police that he fled was played again for the jury and a transcript of the statement also was provided, without objection.

The State also called Detective Mundy to testify, which he did as follows: ²⁹⁷ [THE STATE]: Where were you when you first saw the defendant? [DETECTIVE MUNDY]: I was in the 1100 block of East Pratt Street. [THE STATE]: Where was he? [DETECTIVE MUNDY]: He was on a bicycle heading—I guess it would be westbound on the 1100 block of East Pratt Street. [THE STATE]: If you could help us out, is that towards the Inner Harbor or away from the Inner Harbor? [DETECTIVE MUNDY]: It would be towards the Inner Harbor. * * * [THE STATE]: What did you personally do? [DETECTIVE MUNDY]: I attempted to approach the defendant. [THE STATE]: Okay. Did you walk toward him? [DETECTIVE MUNDY]: Well, I had to run up to him because he was pedaling a bicycle away. [THE STATE]: Okay. Did you say, “Stop, police”? [DETECTIVE MUNDY]: Well, what happened was, when I started running up towards him, he turned around and saw me, and he started to pedal away faster, and I did yell at that point to stop. [THE STATE]: Okay. Before he saw you—I mean, before he started to pedal away, when you first approached him, did you have your gun drawn? [DETECTIVE MUNDY]: No. [THE STATE]: Did you say, “Stop, police”? [DETECTIVE MUNDY]: No, I don’t think I did. [THE STATE]: Okay.

As he pedaled away, what did you do? [DETECTIVE MUNDY]: What, after he saw me? [THE STATE]: Yes. ²⁹⁸ [DETECTIVE MUNDY]: After he saw me and he pedaled away, I called it out to try to get him stopped. I did tell him at that point I was the police, to stop. Hi Hi H: [THE STATE]: Detective, before you saw the defendant fleeing on the bicycle, was he under arrest at that time? [DETECTIVE MUNDY]: No. [THE STATE]: Okay. And how do you know that he heard you? [DEFENSE COUNSEL]: Objection, Your Honor.

THE COURT: If you know how you know, or if you just assumed it, you can tell us that. Overruled. [DETECTIVE MUNDY]: Well, like I said, I ran towards. He saw me. He started pedaling faster away and I yelled, “Stop, police!” I don’t know for certain that he heard me, but ...

Mr. Thompson did not object to the admission of the evidence concerning his flight from police, although he did object to the form of the questions. During the bench conference preceding the jury instructions, the State requested a flight instruction and the following colloquy occurred: [THE STATE]: The State would also ask for [Maryland Pattern Jury Instruction—Criminal] 3:24,[ 1 ], which is flight of the defendant. [DEFENSE COUNSEL]: I would like to be heard on that, Your Honor. ²⁹⁹ THE COURT: Sure. [DEFENSE COUNSEL]: Your Honor, the previous motion suppressed drugs that allegedly were found on Mr. Warren’s person—Mr. Thompson’s person—and in his statement, which was redacted from the jury, he says basically, “I ran because I was dirty.” That was redacted. Now, if you let this flight instruction in front of the jury, they’re going to think that he ran because he committed the shooting, not perhaps the real reason: he ran because he was dirty. That was kept from the jury and I think this is misleading, given the facts that the jury actually did hear.

THE COURT: Well, the instruction says, “Flight under these circumstances may be motivated by a variety of factors, some of which are fully consistent with innocence,” or at least innocence of this crime. [DEFENSE COUNSEL]: I can’t think, even though you are reading that in a light that’s helpful to the defense, if any defense attorney has ever asked for a flight instruction, Your Honor. I definitely believe— THE COURT: No, why would the defense ask for a flight instruction. No, I know, that’s true. [DEFENSE COUNSEL]: No, I think the State wants this because it’s going to say he ran because he’s the shooter and that’s not— THE COURT: Well, that is a permissible inference that they could draw from the evidence, but there’s other inferences and that’s explained right in there. I mean, frankly, it’s a judgment call.

I mean, you could have let go into evidence this other issue as an explanation for why he ran away. I mean, you balance the equities and you make a decision. [DEFENSE COUNSEL]: I just said if this jury instruction is taken in the light of the facts this jury has actually heard, it’s misleading. ³⁰⁰ THE COURT: I don’t think so. Overruled. The court gave the following instruction to the jury: A person’s flight or concealment immediately after the commission of a crime or after being accused of committing a crime is not enough to establish guilt, but it is a fact that may be considered by you as evidence of guilt.

Flight under these circumstances may be motivated by a variety of factors, some of which may be fully consistent with innocence. You must' first decide whether there’s evidence of flight. If you decide there’s evidence of flight, you must then decide whether this flight shows a consciousness of guilt. At the close of the instructions to the jury, the defense counsel objected to the giving of the flight instruction.

The jury in the second trial acquitted Mr. Thompson of attempted first degree murder and attempted second degree murder, but convicted him, with respect to Mr. Gottesman, of first degree assault, second degree assault, reckless endangerment, use of a handgun in the commission of a felony or crime of violence, wearing, carrying, or transporting a handgun, and possession of a regulated firearm after having been convicted of a disqualifying crime. On May 14, 2004, the court denied Mr. Thompson’s motion for a new trial and sentenced him to a forty-year term of imprisonment, with the first five years without eligibility for parole. On May 20, 2004, Mr. Thompson noted his appeal. The Court of Special Appeals, in a reported opinion, concluded that flight instructions given in criminal cases are not per se improper and have consistently been upheld by this Court.

Thompson v. State, 164 Md.App. 652, 673-74 , 884 A.2d 678, 691 (2005). Moreover, the intermediate appellate court determined that the evidence of flight was sufficient to support the giving of the instruction in the present case. On November 18, 2005, Mr. Thompson filed a petition for writ of certiorari in this Court and presented the following issues for our review: ³⁰¹ 1. Should this Court join the growing number of jurisdictions which have held that a flight instruction should never be given in a criminal case? 2.

Assuming arguendo, that it is not improper per se to give a flight instruction, did the trial court err in instructing the jury that it could consider petitioner’s flight as evidence of guilt where the court knew of a probable alternative explanation for the flight of which the jury was unaware? On January 9, 2006, we granted the petition and issued the writ. Thompson v. State, 890 Md. 500 , 889 A.2d 418 (2006). We determine that flight instructions are not per se improper in criminal cases, but we conclude, however, that the trial judge abused his discretion in providing a flight instruction to the jury in the case at bar.

Therefore, we reverse the judgment of the Court of Special Appeals. Discussion Mr. Thompson argues that there is no legitimate reason for instructing jurors that they can consider flight as evidence of guilt. He asserts that the other jury instructions concerning evidence adequately inform the jury that it may make inferences from circumstantial evidence. According to Mr. Thompson, when a trial court gives a jury the flight instruction, that evidence is impermissibly emphasized by the court, which results in the prosecution receiving an unfair advantage.

He further contends that giving a flight instruction is misleading because it improperly strengthens the questionable value of evidence of flight. Mr. Thompson argues that the flight instruction is inherently confusing for jurors because they would most likely not understand the distinction between “evidence of guilt” and “not enough to establish guilt.” Therefore, Mr. Thompson urges this Court to join with those jurisdictions that have disallowed the use of flight instructions. Alternatively, Mr. Thompson asserts that if this Court were to conclude that it is not per se improper to give a flight instruction, the trial court should not have given the instruction in the present case. He claims that because the parties and the court knew of circumstances that did not support the ³⁰² inference that Mr. Thompson fled because he was guilty of the shooting, the trial court should not have encouraged that jury to make such an inference.

Mr. Thompson argues that the evidence presented in the case sub judice does not support the giving of the flight instruction. Conversely, the State contends that this Court should reaffirm its acceptance of flight instructions under proper circumstances and remain in agreement with the majority of other jurisdictions. Moreover, the State argues that the trial judge did not abuse his discretion by instructing the jury on flight. Furthermore, the State notes that Thompson did not object to the introduction of the evidence of his flight and therefore, the record contained sufficient evidence to support a flight instruction.

Flight Instructions Are Not Per Se Improper Mr. Thompson urges this Court to overrule our precedent approving jury instructions on flight and determine that such instructions are per se improper. We decline to do so. Maryland Rule 4-325 governs the giving of instructions to the jury. Specifically, Section (c) of the Rule addresses instructions that are requested by the parties; that section provides: (c) How given.

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 may give its instructions orally or, with the consent of the parties, in writing instead of orally. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given. Md. Rule 4-325.

We have interpreted Rule 4-325(c) as requiring] the trial court to give a requested instruction under the following 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. ³⁰³ Md. Rule 4-325(c); Evans v. State, 333 Md. 660, 691 , 637 A.2d 117, 132 , cert. denied, 513 U.S. 833 , 115 S.Ct. 109 , 130 L.Ed.2d 56 (1994). Ware v. State, 348 Md. 19, 58 , 702 A.2d 699, 718 (1997). Only the first factor is independent of the facts of the case in which it is given, which results in it being determinative of whether the instruction on flight is per se improper. Therefore, we shall examine whether the flight instruction as given in the case sub judice, which is identical to Maryland Pattern Jury Instruction—Criminal 3:24, accurately reflects the law of the State of Maryland.

The instruction at issue in the present case provided: A person’s flight or concealment immediately after the commission of a crime or after being accused of committing a crime is not enough to establish guilt, but it is a fact that may be considered by you as evidence of guilt.... Flight under these circumstances may be motivated by a variety of factors, some of which may be fully consistent with innocence. You must first decide whether there’s evidence of flight. If you decide there’s evidence of flight, you must then decide whether this flight shows a consciousness of guilt.

We have consistently held that although “[f]light by itself is not sufficient to establish the guilt of the defendant,” Sorrell v. State, 315 Md. 224, 228 , 554 A.2d 352, 353 (1989), it “is a factor that may be considered in determining guilt.” Davis v. State, 237 Md. 97, 105 , 205 A.2d 254, 259 (1964). Moreover, we have noted that flight may be indicative of a consciousness of guilt by the defendant. Westcoat v. State, 231 Md. 364, 368 , 190 A.2d 544, 546 (1963). Concomitantly, we have recognized that a defendant’s flight may be motivated by reasons unconnected to the offense at issue in the case and that the determination as to the motivation for flight is properly entrusted to the jury.

See Hunt v. State, 312 Md. 494, 508-09 , 540 A.2d 1125, 1132 (1988). Thus, based on the foregoing cases, the instruction is substantively accurate with respect to the law of the State of Maryland on flight. ³⁰⁴ We have consistently upheld the propriety of flight instructions. 2 See e.g., Sorrell v. State, 315 Md. 224 , 554 A.2d 352 ³⁰⁶ (1989); Young v. State, 234 Md. 125, 130 , 198 A.2d 91, 94 (1964). As we have previously noted, “We are cognizant of the importance of stare decisis and the resulting certainty, definition, and dependability it gives the law.” Willey v. State, 328 Md. 126, 137 , 613 A.2d 956, 961 (1992), quoting B & K Rentals v. Universal Leaf, 324 Md. 147, 158 , 596 A.2d 640, 645 (1991); Conteh v. Conteh, 392 Md. 436, 448 , 897 A.2d 810, 817 (2006) (discussing the application of stare decisis); Livesay v. Baltimore County, 384 Md. 1, 15 , 862 A.2d 33, 41 (2004) (observing that under stare decisis principles “departure from the rule should be the extraordinary case”). ³⁰⁷ In support of his position that the instruction should be held per se improper, Mr. Thompson argues, nonetheless, that in giving the flight instruction to the jury, the judge is impermissibly emphasizing one piece of circumstantial evidence over the remainder of the prosecution’s case. Moreover, he asserts that the general instructions on direct and circumstantial evidence and what constitutes evidence, which were given in this case, adequately address the issues delineated in the flight instruction. 3 We disagree.

As Judge Learned Hand observed in United States v. Heitner, 149 F.2d 105, 107 (2d Cir.1945), “flight is a circumstance from which .. . everyone in daily life inevitably would infer (guilt),” so that the instruction serves as a reminder to the jury that it would be inappropriate to presume guilt from the act of flight. Similarly, the United States Court of Appeals for the District of Columbia Circuit in Miller v. United States, 320 F.2d 767 (D.C.Cir.1963), described the purpose of the instruction as, “to caution against the dangers of drawing conclusions from superficial consideration of experience.” Id. at 773, n. 14 . We agree and conclude that the instruction does not impermissibly emphasize the importance of evidence of flight; rather, it attempts to insure that the jury does not imbue evidence of flight with more weight than it deserves. ³⁰⁸ The substance of the flight instruction is not adequately covered by the two other instructions highlighted by Mr. Thompson. The evidence instruction, Maryland Pattern Jury Instructions—Criminal 3:00, informs jurors that they “may draw any reasonable inferences or conclusions from the evidence that [they] believe to be justified by common sense and [their] own experiences;” likewise, the instruction on circumstantial evidence, Maryland Pattern Jury Instructions—3.01, explains to the jury that circumstantial evidence should be given the same weight as direct evidence.

Although these instructions address the issue of the jury’s ability to draw inferences from the evidence and the weight to be given to circumstantial evidence, they do not encompass the entirety of the flight instruction’s admonition to the jury that the defendant’s flight may not have been motivated by a consciousness of guilt, which might be the general conclusion of people as noted in Heitner, 149 F.2d at 107 . Therefore, the general jury instructions regarding inferences from the evidence generally, and the appropriate weight to be given to circumstantial evidence in particular, are not adequate to render the flight instruction superfluous. Moreover, there are circumstances in which flight evidence and a flight instruction are necessary. In Sorrell , we concluded that the trial court properly instructed the jury on the permissible inferences from the defendant’s flight in the midst of his trial where the circumstances indicated that the absence was voluntary and an attempt to evade conviction. 315 Md. at 229-32 , 554 A.2d at 354-55 .

We further concluded that the state could discuss the defendant’s absence to avoid prejudice to its case, and as such the court could, in its discretion, give the instruction. Id. at 229 , 554 A.2d at 354 . Flight evidence and a jury instruction on flight also are particularly appropriate in circumstances where a defendant places his or her mental status at the time that the crime was committed in issue. In People v. Moon, 37 Cal.4th 1 , 32 Cal.Rptr.3d 894 , 117 P.3d 591 (2005), Richard Moon was charged with the first degree murders of his former girlfriend and her mother.

Id. at 596. At trial, the prosecution intro ³⁰⁹ duced evidence that Moon observed police converging on his motel room and fled. Id. at 598. When police arrested him, Moon confessed to killing the two women.

Id. at 597. The trial court instructed the jury that it could “consider defendant’s flight after the crime as circumstantial evidence of his guilt or innocence.” Id. at 608. Before the California Supreme Court, Moon argued that the court erred in giving the instruction because the inference “that he suffered a guilty conscience and thus probably killed the victims, was irrelevant because he admitted having killed them.” Id. Although he admitted to the murders, Moon contested his mental state at the time of the killings.

Id. The California Supreme Court determined that [e]ven if he conceded at trial his guilt of some form of criminal homicide, ‘the prosecution is still entitled to prove its case and especially to prove a fact so central to the basic question of guilt as intent.’ We have previously rejected the notion that the flight instruction is improper when an accused concedes the issue of identity and merely contests his mental state at the time of the crime. Id. Therefore, the court concluded that flight instructions are proper not only because flight evidence is relevant to the ultimate issue of guilt, but also because it is circumstantial evidence of intent.

Id. Thus, because flight evidence may be probative with respect to intent as well as guilt, we decline to hold that giving a flight instruction is per se improper. The position urged upon this Court by Mr. Thompson has been adopted by a minority of our sister states. See Hadden v. State, 42 P.3d 495, 508 (Wyo.2002) (determining that the giving of a flight instruction is reversible error because it impermissibly emphasizes a single piece of circumstantial evidence); Dill v. State, 741 N.E.2d 1230, 1233 (Ind.2001) (concluding that the flight instruction should not be given because it is “confusing, unduly emphasizes specific evidence, and is