Woodland v. State

ROBERT M. BELL, Judge. Appellant, John H.C. Woodland, was tried by a jury in the Circuit Court for Baltimore City on two counts of murder in the first degree, and counts of assault with intent to murder and related use of a handgun in the commission of a crime of violence. He was convicted of both murder counts and the related handgun counts and acquitted of assault with intent to murder and its related handgun charge. After being sentenced to consecutive life, plus fifteen years sentences, appellant appealed to this Court.

Although seven bases for reversal are urged, we need only consider three: I. THE TRIAL COURT COMMITTED ERROR WHEN, AFTER THE PROSECUTOR HAD ARGUED THE MISSING WITNESS RULE, IT REFUSED TO INSTRUCT THE JURY THAT APPELLANT DID NOT HAVE THE BURDEN TO PROVE HIS INNOCENCE II. THE TRIAL COURT COMMITTED ERROR IN GRANTING THE STATE’S REQUEST FOR A PARTICIPATION INSTRUCTION ⁵⁰⁶ III. THE EVIDENCE WAS LEGALLY INSUFFICIENT TO SUSTAIN GUILTY VERDICTS 1. During voir dire of prospective jurors, the trial court propounded the following question: There may be certain witnesses called in this case, ladies and gentlemen.

I’m now going to read their names and addresses or assignments to you. I’m going to pause after each name, and I want anyone who is related to or acquainted with the person who’s [sic] name I have read to stand up. Among the names read were George Woodland and George Russell. Neither was called by appellant to testify.

Appellant testified in his own defense and denied any involvement in the crimes. His testimony was that he was on his way to 701 Mulberry Street, to a friend’s house, when he heard shots; he ducked down near a car; he saw a person run by him and drop a gun, which he picked up; he ran with the gun in hand; and he was stopped by the police and arrested. On cross-examination, the prosecutor developed the name of the friend as Abdula Mateen Matuking. He then determined that appellant had talked to Abdula on the telephone earlier in the day and learned that Abdula would be home for the evening on the night in question but no arrangements to meet were made.

Abdula, who was incarcerated at the time of trial, was not called by appellant. During rebuttal closing argument, the prosecutor argued: [BY MR. BRAVE] ... That is one example of how Mr. Cardin has — forget not playing fair.

Doing his job and doing it beautifully. And he brings character witnesses. He asked you on voir dire the name of John Woodland, George Russell, have all been tossed around here. We haven’t heard from George Woodland.

We haven’t heard from George Russell. How do you know how they feel? ⁵⁰⁷ How do you really know? This is another example of the matter of defense attorney — ... doing his job. After appellant’s objection was overruled, he continued: How do you know that they are not vastly relieved that their nightmare is finally, or hopefully finally, over?

How do you know that? Mr. Cardin just throws these names out hoping that they will make a connection with you, George Russell, George Woodland, John Woodland ... Later, the prosecutor returned to the subject of appellant’s failure to call witnesses: ... Now, you’ve already seen the skill of the defense.

Why didn’t you put some of that skill to work finding Mr. Abdule whatever his name is? Why didn’t — why didn’t— when this story unfolds, for the first time Again, appellant’s objection was overruled and the prosecutor continued: You mean you were down there to visit Abdule whatever? We know where he is now. He’s incarcerated.

He’s easy to find. Right then and there, why not a phone call? Abdule, you’ll never guess what happened, where I am. I’m sitting here in City Jail.

I’m walking on the way down to your house at seven — it’s true I didn’t call you or anything, but I had confidence you were going to be there, and on my way down, guess what kind of jackpot I got into? And it may be necessary, if I want to catch you, so don’t you forget this. It may be necessary sometime in the future for you to come forward and say, yeah, we had talked about meeting that night. Wouldn’t that be where some of his skill should have been directed? ...

Following the court’s instructions to the jury, the following colloquy occurred at the bench: [MR. CARDIN] ... I’ve also, during closing arguments, wanted to — I objected to Mr. Brave making certain comments about calling the defense, being able to call any witness. I did ⁵⁰⁸ not hear the Court instruct the jury that there is no obligation on the Defendant to produce any evidence whatsoever.

I believe that is an appropriate instruction. That’s why I objected to his making that comment, and I’m going to ask the Court to instruct the jury. THE COURT: What do you want me to instruct the jury? MR.

CARDIN: Maybe I missed it, but usually in the boiler plate, the early part of the instructions, the Court indicates to the jury the instruction to the jury that of course the presumption of innocence, and that the burden rests upon the State, and that there is no burden on the Defendant to prove himself innocent, nor to present any evidence whatsoever. THE COURT: I can give the first part of what you said, but certainly hear it argued all the time, but there are cases where a missing witness rule is appropriate. And this isn’t that, case, but I mean you and I both have seen criminal cases where the State’s entitled to a missing witness rule. So there is a duty in some cases about witnesses.

I didn’t say this was the appropriate case, but I think that it was appropriate argument for Mr. Brave to make that. What was his name? Abdule somebody could have been produced by the Defendant, if in fact he could corroborate his story. So I think it’s proper.

You have your exception, but I’m not going to modify it. MR. CARDIN: That will be the only exception. THE COURT: Thank you very much.

Against this background, appellant argues that the court erred in allowing the State to argue the inference to be drawn from a missing witness when the State was not entitled to a missing witness instruction. This error, coupled with the court’s further error in refusing appellant’s requested instruction that he did not have , any burden to call any witnesses, appellant continues, “... effectively denied Appellant his constitutional right to confrontation ⁵⁰⁹ and cross-examination ...” and “his right to due process ... because ... it had the effect of shifting the burden of proof from the State to appellant.” Appellant also maintains that the requested instruction was and is a correct statement of the applicable law and should have been given in view of the prosecutor’s argument, which rendered the court’s instructions deficient as to the legal principle espoused by appellant. Finally, he claims prejudice sufficient to compel reversal. As we begin our analysis, we note that the witnesses whose absence was argued by the prosecutor were of different types: Woodland and Russell were character witnesses and Matuking was a fact witness.

The Court of Appeals, in Christensen v. State, 274 Md. 133, 134 , 333 A.2d 45 (1975), 1 citing 1 Underhill Criminal Evidence, Sec. 45 (Rev. 6th ed. P. Herrick 1973) set out the missing witness rule: The failure to call a material witness raises a presumption or inference that the testimony of such person would be unfavorable to the party failing to call him, but there is no such presumption or inference where the witness is ⁵¹⁰ not available, or where his testimony is unimportant or cumulative, or where he is equally available to both sides. The presumption or inference that the testimony of a missing witness would be unfavorable is applied most frequently when there is a relationship between the party and the witness, such as a family relationship, an employer-employee relationship and, sometimes, a professional relationship. Generally, the accomplice-defendant relationship does not raise an inference against the defendant.

In view of his constitutional privilege, no inference is raised against a defendant who does not testify, but if he does become a witness and then fails to explain away incriminating circumstances, such failure may be taken against him. It has been defined in other terms. We, in Pierce v. State, 34 Md.App. 654, 658 , 369 A.2d 140 (1977) said: 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 eludicate 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 , 14 S.Ct. 40, 41 , 37 L.Ed. 1021 . See also 1 Wharton: Criminal Evidence § 148 (13th Ed. C. Torcía 1972).

Thus, the missing witness rule applies where (1) there is a witness, (2) who is peculiarly available to one side and not the other, (3) whose testimony is important and non-cumulative and will elucidate the transaction, and (4) who is not called to testify. The inference to be drawn from the failure to call a witness will arise only if the relationship between the defendant and the witness is one of interest or affection. 1 Wharton’s Criminal Evidence, supra, § 149. The inference will not arise if the relationship is that of accomplice/defendant, Christensen v. State, supra, although the defendant’s conviction will not be set ⁵¹¹ aside if the prosecution argues the rule and no request for a reverse missing witness instruction is made. Pierce v. State, supra.

With these principles in mind, we will proceed to an analysis of the issues in the case sub judice. George Russell and George Woodland occupy a similar, if not identical position. Neither meets the prerequisites for a missing witness whose absence gives rise to an unfavorable inference. The record does not contain any information from which it could be concluded that they were fact witnesses whose testimony would elucidate the transaction.

Other than the context of the closing argument and appellant’s failure to correct the prosecutor, there is nothing in the record to suggest what, if anything, Russell and Woodland would have testified about. Thus, the materiality of their testimony or even their availability is not evident from this record. Although Woodland was mentioned and identified, by appellant and one other witness at trial, as appellant’s uncle, there is absolutely no reference in the record to Russell’s relationship to appellant. From the context in which they were mentioned by the prosecutor and the absence of any other indication that their testimony was relevant to the transaction, Russell and Woodland appear to have been character witnesses.

Assuming arguendo that the missing witness rule applies to character witnesses, the argument was nonetheless improper. Appellant called three character witnesses; therefore, Russell’s and Woodland’s character evidence would have been cumulative. Abdula presents a different analysis. His testimony could only have corroborated appellant’s assertion that he had spoken to Abdula on the evening of the murders, learned he would be home and, though no time was given, indicated he would be by that night.

Abdula was not an accomplice and, as appellant’s friend, he would appear to have the requisite relationship. The relevant inquiry then is ⁵¹² his materiality or importance of his testimony. We are of the opinion that Abdula, in the context of this case, was not a material witness whose testimony would elucidate the transaction. We conclude that the missing witness rule did not apply.

We agree with the trial court that the prosecution was not entitled to a missing witness instruction. Nevertheless, the prosecutor was allowed to argue the rule. We turn to the issue whether that argument was proper. A similar situation to that in the instant case was presented in Pierce v. State, supra.

There, the prosecutor was allowed, over objection, to argue the missing witness rule even though the missing witness was an accomplice. No reverse missing witness instruction was requested as it was in Christensen v.