Robinson v. State

¶1dissenting.

¶2“[W]hen a party ... fails ... without explanation, to produce relevant, noncumulative, unprivileged evidence to which he or she has superior access, the jury may be instructed that it may infer that the evidence would have been unfavorable to that party.” 5 L. McLain, Maryland Practice: Maryland Evidence § 301.4 (1987) at 229 [footnote omitted]. On the other hand “ ‘[n]o 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.’ ” Christensen v. State, 274 Md. 133, 139-140, 333 A.2d 45, 48-49 (1975) (quoting 1 Wharton, Criminal Evidence, § 148 at 251 (13th ed. C. Torcia 1972).

¶3In the case before us, the missing witness was not a codefendant or accomplice of petitioner Walter E. Robinson, nor had the witness been convicted of the same offense (theft of an automobile) for which Robinson was on trial, but he was a person implicated in criminal conduct by Robinson’s testimony. The trial court gave a missing witness instruction. The majority, declining to apply Christen*323sen’s reasoning beyond its specific facts, upholds that action. I respectfully dissent.

¶4The rationale supporting the missing witness doctrine has been summarized thus: “The nonproduction of a witness indicates that the party fears what the witness would say if called, from which the fact-finder may conclude that the content of the witness’ testimony would be unfavorable to the party.” Stier, Revisiting the Missing Witness Inference: Quieting the Loud Voice from the Empty Chair, 44 Md.L.Rev. 137, 142 (1985). But because “[t]he empty chair now speaks too eloquently,” id. at 175, “courts have reacted to the rule’s potential inaccuracy and unfairness by decreasing the number of situations in which the adverse inference might be applied____” Id. at 151.1 An example of this prudent limitation of the doctrine is found in Christensen.

¶5In that case Christensen was charged with attempted rape and related offenses. The prosecuting witness testified that Jesse Paine forced her to enter a vehicle, after which Christensen attempted to rape her, telling Paine that *324Christensen “would ‘get her first’ and that Paine could ‘have her after----’” Christensen, 274 Md. at 136, 333 A.2d at 47. All this Christensen denied. Paine did not testify. The trial judge refused to instruct the jury that “ ‘there [was] no duty on the defendant to produce [Paine] and no inference [should] be drawn from the fact that he wasn’t produced.' ” Id.Christensen was convicted. We reversed.

¶6Judge Smith, for the Court, recognized the missing witness rule. 274 Md. at 134-135, 333 A.2d at 46. But, as we have seen, the Court applied what is sometimes called the “accomplice” exception to it, an exception characterized as representing “the better and the majority rule.” Id. at 140, 333 A.2d at 49. Paine, according to the prosecuting witness, was Christensen’s accomplice. Judge Smith explained:

[C]ounsel 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. In short, if the exception to the rule for a codefendant or an accomplice did not exist, the defendant would be faced with a Hobson’s choice incompatible with our concept that a defendant is innocent until proven guilty beyond all reasonable doubt and that the burden of proof never shifts from the State.

¶7Id.

¶8In the case before us, it is true, we are not dealing with a missing witness who was an accomplice. The individual in question was identified as Alvin Johnson, a friend of Robinson’s, from whom Robinson had borrowed an automobile. *325The automobile was stolen; Robinson was apprehended while driving it; his sole defense was that Johnson had allowed him to use the car, and had said it belonged to Johnson’s cousin. Robinson also testified that Johnson was at the scene when the police stopped the car and arrested Robinson, and that Robinson, then realizing that Johnson was the thief, pointed the latter out to the police, but they disregarded this information. Under these circumstances, the majority concedes that were Johnson called as a witness to support Robinson’s testimony, it is likely that Johnson would claim his privilege against self-incrimination. After all, if Robinson was telling the truth, Johnson was, at the very least, one who had been in possession of recently stolen goods, and this fact allows the trier of fact to draw an inference that the possessor is the thief. Cross v. State, 282 Md. 468, 480, 386 A.2d 757, 765 (1978). But in the majority’s view

[i]n Christensen, the mere fact that the witness would probably refuse to testify was not the dispositive factor. Rather, we were there concerned with the harm that would probably be done to the defendant’s case if the accomplice invoked the privilege in the presence of the jury.

¶9Maj. op. at 316. According to the majority, that likelihood of harm is not present here. I disagree both with that conclusion and with its premise.

¶10As to the conclusion, the majority argues that a claim of privilege by Johnson, in the presence of the jury, would not be harmful to Robinson’s case. This claim, it is said, would be wholly consistent with Robinson’s defense that he was the innocent borrower of a stolen car and thus would support Robinson’s testimony rather than undermine it. It is otherwise in the Christensencircumstances, for the claim of privilege by the alleged accomplice there would have tended to establish the very fact that the crime for which Christensen was on trial had been committed. And since in Christensenboth Paine and Christensen were placed at the *326scene of that crime, the prosecuting witness’s testimony would have been substantiated, to Christensen’s detriment.

¶11It is certainly true that Christensenis factually distinguishable from this case. But the notion that Robinson could not have been harmed had Johnson been called and claimed his privilege assumes too much sophistication on the part of the jury. It may or may not be aware of the inculpatory effect of possession of recently stolen goods and regardless of that knowledge might well assume that Johnson’s refusal to testify was based on Johnson’s complicity, along with Robinson’s, in the theft itself. Thus, Johnson’s claim of privilege might indeed be harmful to Robinson.

¶12Beyond that, however, the majority reads Christensentoo narrowly. It is correct that one basis for the decision is that harm that might be done by an accomplice claiming before the jury the privilege against self-incrimination. But the “Hobson’s choice” to which Judge Smith referred was not merely the choice between that harm and the adverse inference drawn from the absence of a witness. There is another Hobson’s choice: what if the witness, himself implicated in the crime, decides to testify falsely in an effort to exculpate himself and throw all the blame on the defendant? That was a possibility in Christensen, and it is certainly a possibility here.

¶13It was also a possibility recently recognized in the factually similar case of State v. Gibson, 735 S.W.2d 756 (Mo.Ct. App.1987). In that case, Gibson was arrested while driving an automobile which was stolen from a car rental agency. He was charged with auto theft. At trial, he testified that a friend of 24 years had leased the automobile to him for three days for $75.00. In the course of closing argument, the prosecutor, in essence, invited the jury to draw an adverse inference from Gibson’s failure to produce his friend as a witness. The trial court sustained defense counsel’s objection and cautioned the jury to disregard the remark, but denied counsel’s subsequent motion for a mistrial. Although the Missouri Court of Appeals found insuf*327ficient prejudice to warrant a mistrial, it indicated that “[ajssuming the defendant’s trial testimony was truthful it is logical and understandable that defendant’s ‘friend’ would be unlikely to appear and admit his own guilt.” Id. at 759.

¶14It follows, therefore, that “[a] witness who has been identified by the defendant as the perpetrator of the crime, ... or who has a fifth amendment privilege as to the testimony in question is not considered available to either party” within the meaning of the -missing witness rule. Lawson v. United States, 514 A.2d 787, 791 (B.C.App.1986) [citations omitted]. A missing witness instruction is, of course, inapplicable where the witness is unavailable to either party. Christensen, 274 Md. at 134, 333 A.2d at 46.

¶15In short, under circumstances like those here, the inference that the missing witness, if he were called, and if he testified truthfully, would testify adversely to the defendant does not apply. There is the possibility of harm if the witness claims the privilege. Even if that problem is avoided by a proceeding out of the presence of the jury, there is danger that a witness, him or herself identified as being involved in a possible crime, might not claim the privilege but rather testify in an exculpatory albeit false fashion.2

¶16In Simpson v. State, 34 Md.App. 378, 367 A.2d 66 (1977), Judge Moylan correctly applied the Christensenprinciple to a missing witness who was neither accomplice nor codefendant. I would adopt the holding of Simpson, and conclude *328that the missing witness instruction should not have been given in Robinson’s case.

¶17Moreover, I believe the error to be reversible. During the course of the trial, the jury sent in notes evincing considerable interest in Alvin Johnson and his absence from the proceedings.. As the State conceded at trial, the only real issue was Robinson’s credibility. In this situation, the State’s reliance on the adverse inference authorized by the missing witness instruction cannot be said to have been harmless beyond a reasonable doubt. Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976). See Simpson, 34 Md.App. at 383, 367 A.2d at 69; see also Lawson, 514 A.2d at 793; Thomas v. United States, 447 A.2d 52, 59 (D.C. 1982); State v. Francis, 669 S.W.2d 85, 91 (Tenn.1984). I would reverse.

¶18Judges ELDRIDGE and COLE have authorized me to say that they join in this dissenting opinion.