Jerry Harris v. State of Maryland, No. 9, September Term 2017. Opinion by McDonald, J.


CRIMINAL PROCEDURE – MISSING WITNESS INSTRUCTION

A legal doctrine known as the “missing witness rule” concerns an inference that might be
drawn from the absence at trial of a potential witness. If the potential witness would be
expected to have knowledge of information important to an issue in the case and if that
witness is “peculiarly available” to one party because of a relationship of interest or
affection but the witness is not called by that party to testify, the factfinder may infer that
the witness would have given testimony unfavorable to that party. In argument in a jury
trial, counsel may urge the jury to draw such an inference adverse to an opposing party. In
a missing witness instruction, the trial court tells the jury that it may draw such an inference
if it finds that the prerequisites of the missing witness rule are satisfied. However, the
rationale underlying the missing witness rule is questionable and, in a criminal prosecution,
the doctrine may be in conflict with constitutional principles that place the burden of proof
on the prosecution and forbid comment (in a case where the defendant does not testify) on
the failure of a defendant to testify. Accordingly, a missing witness instruction that invites
the jury in a criminal case to draw an inference adverse to the defendant based on the
defendant’s failure to produce evidence should rarely, if ever, be given.
Circuit Court for Baltimore City
Case Nos.: 114069007, 114069008
           114069009, 114069010
Argued: October 11, 2017
                                   IN THE COURT OF APPEALS

                                          OF MARYLAND

                                                No. 9

                                       September Term, 2017



                                          JERRY HARRIS

                                                  v.

                                     STATE OF MARYLAND


                                        Barbera, C.J.
                                        Greene
                                        Adkins
                                        McDonald
                                        Watts
                                        Hotten
                                        Getty,

                                               JJ.


                                     Opinion by McDonald, J.
                                   Adkins, J., concurs and dissents.


                                        Filed: April 12, 2018
       In a criminal trial, the prosecutor asks the jury to draw various inferences from the

evidence adverse to the defendant – the ultimate adverse inference being that the defendant

is guilty as charged. In certain limited circumstances, one such adverse inference may be

that the defendant’s failure to call a witness peculiarly in the control of the defendant

indicates that the witness would have testified unfavorably to the defendant. This is

sometimes called the “missing witness rule.”

       There is a related pattern jury instruction sometimes used by trial courts in Maryland

known as the missing witness instruction. In that instruction, the trial court instructs the

jury that, if a witness likely could have given important evidence in the case and it was

peculiarly within the power of one party to produce that witness but the witness was not

called and the individual’s absence was not adequately explained, the jury may infer that

the witness would have testified unfavorably to that party.

       In a criminal prosecution, the State bears the burden of proof beyond a reasonable

doubt on all elements of the crimes charged and a defendant has no obligation to testify, to

call witnesses, or to produce evidence. When a trial court gives a missing witness

instruction at the behest of the prosecution against the defendant, the court essentially

endorses the particular inference that the prosecutor asks the jury to draw against the

defendant. In our system of justice, this should rarely – if ever – be done, as it may be at

odds with the constitutional principles that govern a criminal case. Even in the limited

circumstances in which a prosecutor may legitimately urge the jury to draw an inference

adverse to the defendant under the missing witness rule, there is no need for the court to

endorse that element of the prosecutor’s argument.
       In this case, Petitioner Jerry Harris was charged with various offenses arising out a

home invasion and robbery at an apartment in Baltimore City. None of the victims of the

crime identified Mr. Harris as a participant in the robbery; the only evidence linking him

to the crime was a latent fingerprint examination that matched prints found on pill bottles

at the apartment to prints on file for his left hand, which had previously been disabled in

an industrial accident. Mr. Harris testified that he had been at his mother’s home on the

night of the robbery, but his mother did not testify. At the suggestion of the trial court, the

prosecutor requested a missing witness instruction that advised the jury that it could infer

from the mother’s absence that she would have testified unfavorably to Mr. Harris. The

trial court gave that instruction and, after a lengthy deliberation, the jury convicted Mr.

Harris of some of the charges related to the robbery and acquitted him of others.

       We hold that it was error to give the missing witness instruction in this case and, for

that reason, reverse Mr. Harris’ convictions.

                                                I

                                        Background

       The Home Invasion and Robbery

       On the evening of January 16, 2014, Gale Binko and Alease Holmes were playing

cards at the kitchen table in Ms. Binko’s Baltimore City apartment. Lester Allen, who also




                                                2
lived in the apartment, and a woman known only as “Reds”1 were also present. Several

pill bottles for Ms. Binko’s prescriptions2 and some cash lay on the table.

       Around 9:00 p.m., Reds decided to leave the apartment. At Ms. Binko’s request,

Mr. Allen accompanied Reds to the door. When they opened the front door, they were

confronted by two masked men, one of whom had a gun. Back in the kitchen, Ms. Binko

heard some unfamiliar voices interspersed with Mr. Allen’s voice. She heard Reds say

“[T]hey got a gun.” Reds and Mr. Allen then returned to the kitchen accompanied by the

two masked men. The man with the gun was holding it to Mr. Allen’s head.

       The second masked man, who was called “Black” by the masked man with the gun,

grabbed approximately $350 from the kitchen table in front of Ms. Binko. Black then

opened Ms. Binko’s blouse, groped her, and pulled out a bottle of Oxycodone pills that

was concealed in her blouse.

       The masked man holding the gun to Mr. Allen’s head then directed Black to check

Ms. Binko’s socks. Black removed Ms. Binko’s shoes, but Ms. Binko began to fight back.

At one point during the struggle, Black’s mask came off, giving Ms. Binko a glimpse of

his face. She described him as a tall, stout, black man with a dark complexion and a

mustache. She was not sure whether he had a beard. Ms. Binko testified that Black used




       1
         Ms. Binko, Ms. Holmes, and Mr. Allen all testified at trial. The State was unable
to locate Reds and she did not testify.
       2
       Ms. Binko testified that she had recently purchased the four bottles of pills at a
pharmacy.


                                             3
both of his hands when he searched her blouse, pulled off her shoes, and struggled with

her.

       While Ms. Binko was engaged with the two intruders, Ms. Holmes and Reds fled

through a back door. After subduing Ms. Binko, Black picked up and examined each of

the three pill bottles on the kitchen table. Then he and the man with the gun left the

apartment through the back door.

       The Investigation

       After the robbers left, Ms. Binko called 9-1-1. The police responded to the

apartment within five minutes. Ms. Holmes returned to the apartment shortly thereafter,

although Reds did not. Detective Franklin Gaskins interviewed Ms. Binko, Ms. Holmes,

and Mr. Allen. The police were never able to locate or identify Reds. Ms. Binko was

unable to make an identification of the robbers because, she later testified, she was “upset

and afraid.”

       Detective Gaskins summoned the crime lab to the apartment. A crime lab technician

lifted two prints from a large prescription bottle and one from a small prescription bottle

on the kitchen table. A latent print examiner at the Police Department lab later analyzed

the lifted prints. The examiner determined that the three prints matched impressions on

file of Mr. Harris’ left thumb, index finger, and middle finger.3




       3
        To avoid making a reference to Mr. Harris’ criminal history, the State’s Attorney
and defense counsel agreed on a stipulation that Mr. Harris’ fingerprints were in a “state
database.”

                                             4
       Detective Gaskins then took a photograph of Mr. Harris to Ms. Binko’s home to

display to Ms. Binko. She told the detective that she did not know Mr. Harris, that he had

not been to her home, and that there was no reason for him to have handled her pill bottles.

Neither Ms. Holmes nor Mr. Allen, who also testified at trial, identified Mr. Harris as one

of the robbers.

       Based on the fingerprint identification, Detective Gaskins obtained an arrest warrant

for Mr. Harris.    Following Mr. Harris’ arrest in February 2014, Detective Gaskins

attempted to interview him.

       Police Interview of Mr. Harris

       At trial, the prosecutor asked Detective Gaskins about his attempt to interview Mr.

Harris following his arrest. The prosecutor asked the detective what occurred during that

interview, defense counsel objected, and the following bench conference ensued:


              Court:                There’s nothing wrong with the question. I don’t know
                                    what the answer is going to be. Meaning, if his answer
                                    is, he said, then we could get into this. It could be, I
                                    observed him crying. And then that’s fine. Do you
                                    know what I mean? So I don’t know where this is
                                    going.

              Defense Counsel:      Well, what actually occurred was that he started to sign
                                    a waiver of rights form, and then asked them if he was
                                    being charged with armed robbery. And they said yes.
                                    And he says, well, I’m not talking, you know, I want to
                                    talk to my lawyer. And he refused to sign the rest of
                                    the statement.

                                    So I think that he has a fifth amendment privilege not
                                    to incriminate himself and that, you know, his refusal
                                    to talk to police shouldn’t be admissible as proof of
                                    guilt.


                                             5
Court:             I don’t know if the problem is his refusal to talk to
                   police. I think the problem for him more is the fact that
                   he knew what he was being charged with before they
                   charged him. I mean, if you’re an innocent man and
                   you’re brought in, how would you have said, are you
                   charging me with armed robbery? I mean, how would
                   you pick that out of the air?

Defense Counsel:   I don’t know. Maybe they told him or something.
                   Maybe that’s what he heard, because they had already
                   executed a search warrant at his estranged wife’s
                   house, and they had already executed a search warrant
                   at his mother’s house where he lived.

Court:             Okay.

Defense Counsel:   So obviously they had to leave copies of both search
                   warrants there.

Court:             Okay. Okay. Fair enough. And why do you think that
                   his refusal to speak to the police is indication of his
                   guilt? Why do you think they would take it that way?

Defense Counsel:   Because it’s been my experience.

Court:             That?

Defense Counsel:   That juries don’t like when people refuse to talk to the
                   police.

Court:             [Prosecutor]?

Prosecutor:        Innocent people refuse to talk to the police too. The
                   jury has already been given the instruction as far as,
                   you know, (inaudible).

Court:             I think it’s factual. He didn’t want to talk. It’s not
                   hearsay. I don’t think it’s highly prejudicial. And I
                   think that you could definitely rehabilitate it, you
                   know, into any level of prejudice that you think it might
                   cause. The objection’s overruled.



                            6
       After counsel returned to the trial tables, the court advised the detective that he could

answer the question and the detective provided the following response:

              Detective Gaskins:     Mr. Harris provided us with a false address, denied any
                                     involvement with the robbery, and then I believe he
                                     requested an attorney.4

The prosecutor then moved on to another topic. Defense counsel did not cross-examine

the detective concerning the interview. Mr. Harris’ invocation of his right to counsel

during the police interview was not mentioned in either testimony or argument during the

remainder of the trial.

       Searches of the Homes of Mr. Harris’ Wife and of his Mother

       Detective Gaskins obtained a search warrant for the address that Mr. Harris provided

during his police interview. The address turned out to be not a false address, but rather a

former address. The woman who lived there – and whom Mr. Harris later identified as his

wife5 – told the police that Mr. Harris had not stayed there for some time and gave them

the address of Mr. Harris’ mother, Barbara Fallin, where she believed that Mr. Harris had

been staying. When the police went to Ms. Fallin’s address, Ms. Fallin consented to a

search of the portion of the house where Mr. Harris kept belongings, but said that she had




       4
        It is unclear from the detective’s testimony at the trial whether Mr. Harris had been
given his Miranda rights prior to making these statements.
       5
         Detective Gaskins described the woman as a “former girlfriend” of Mr. Harris.
During the defense case, Mr. Harris identified her as his wife, from whom he had separated
in late 2013.


                                               7
not seen him for a couple weeks, as she had asked him to leave the house. According to

Detective Gaskins, no evidence was recovered in the search of either location.

       The Defense Case

       In his opening statement, defense counsel indicated that he was planning to call Ms.

Fallin as an alibi witness on Mr. Harris’ behalf. Defense counsel told the jury that Ms.

Fallin would testify that Mr. Harris was at her house the entire night on the date of the

robbery.

       After the State rested its case, Mr. Harris, rather than Ms. Fallin, testified in his

defense. Mr. Harris testified that his left arm had been amputated “mid-arm” as a result of

a work accident in 2004.6 Doctors were able to re-attach the arm, and he underwent

multiple surgeries and physical therapy. Mr. Harris explained that he had regained feeling

in his hand, but he was not able to grasp items or use his hand in the same manner as before

the accident. Mr. Harris testified that he was right-handed, and that he had adapted to

performing daily activities with one hand. He said that he had to use his right hand to put

items in his left hand.

       Mr. Harris testified that in late 2013 he had separated from his wife and moved in

with his mother, where he was still living on January 16, 2014 – the day of the robbery at

Ms. Binko’s apartment. Mr. Harris said that he did not know Ms. Binko, Ms. Holmes, Mr.



       6
        During a pretrial conference, the court suggested that defense counsel describe Mr.
Harris’s hand as being “in a claw-like state” because “[y]ou can visually look at Mr. Harris
and see that there is an issue with his hand ... anyone can look at Mr. Harris and see that
his hand is not quite normal or regular.”


                                             8
Allen, or Reds. He denied robbing Ms. Binko or participating in a home invasion of her

apartment. Mr. Harris said that he spent that day at his mother’s house, that she was home

with him the whole day, and that no one else was with them at the time of the robbery. Mr.

Harris denied that he had given Detective Gaskins a false address when he told him the

address where he had lived with his wife.

       Mr. Harris did not call Ms. Fallin to testify at the trial; nor did the State call her as

a rebuttal witness.7

       Jury Instruction Conference

       After the defense rested, the Circuit Court met with counsel to discuss the jury

instructions. As had been earlier suggested by the Circuit Court,8 defense counsel had

requested a missing witness instruction related to the State’s failure to call Reds as a

witness. The Circuit Court then suggested that the State would also seek its own missing

witness instruction with respect to the failure of the defendant to call Ms. Fallin as a



       7
         During cross-examination by the prosecutor, Mr. Harris acknowledged that his
mother was not present at the trial, but neither the State nor defense counsel elicited the
reason for her absence. Mr. Harris testified that he had not paid rent to his mother while
he lived with her, but that she was not his source of financial support. On redirect
examination, Mr. Harris testified that he had given his mother money occasionally in the
past, and that he gave her $75,000 in 2008 or 2009 from a settlement for his arm injury.
       8
          At the outset of the trial, prior to jury selection, the Circuit Court and counsel
briefly discussed the fact that the prosecution was having difficulty identifying Reds and
locating Mr. Allen. (Mr. Allen was eventually located, detained as a material witness, and
testified at trial; Reds was never located). At that time, the Circuit Court suggested that
the defense would want the court to give a missing witness instruction as to those
prosecution witnesses. However, nothing was resolved at that time concerning the jury
instructions.


                                               9
witness. The State opposed a missing witness instruction as to Reds, arguing that nobody

had been able to locate or identify her and thus she was equally unavailable to both parties.9

Defense counsel ultimately withdrew his request for that instruction.

       The State then adopted the Circuit Court’s suggestion and requested a missing

witness instruction relating to the absence of Ms. Fallin. Defense counsel objected, arguing

that the State had never requested a subpoena for Ms. Fallin and that there were reasons

for her absence that were not relevant to the trial. The following colloquy took place:

              Court:              Okay. Okay. If a witness could have given important
                                  testimony in issue with this case—and I imagine an alibi
                                  would be considered important testimony—and if the
                                  witness was peculiarly in the power of the defendant to
                                  produce—which she was, it’s his mother—but was not
                                  called as a witness by the defendant, and the absence of
                                  that witness was not sufficiently accounted for or
                                  explained—which it was not—then you may decide
                                  that—I mean, how is this not applicable?

              Defense Counsel: Because it’s not peculiarly within his power. He’s in jail.
                               He doesn’t have the power to do anything.

              Court:              Right. You are acting as his agent, [defense counsel].

              Defense Counsel: True.




       9
         The prosecutor also referred to commentary in a bar publication that includes a
pattern missing witness instruction. The commentary suggested that a party seeking a
missing witness instruction should disclose that intention, out of the jury’s presence, at the
close of the opposing party’s case in order to afford the opposing party an opportunity to
call the missing witness or explain the reason for not doing so. See Maryland State Bar
Association, Maryland Criminal Pattern Jury Instructions (2d ed. 2012), MPJI-Cr3:29,
Comment. The procedure suggested in the commentary is based on this Court’s decision
in Christensen v. State, 274 Md. 133, 135 n.1 (1975). See Part II.B of this opinion.

                                             10
              Court:                Okay. So you had the ability to either bring her here or
                                    subpoena her here as an alibi witness. The objection is
                                    overruled. [Criminal Pattern Jury Instruction] 3.29
                                    missing witness instruction is being read.

Defense counsel then argued that the instruction improperly shifted the burden of proof to

the defendant to produce evidence. The Circuit Court agreed that the instruction would be

improper if Mr. Harris had chosen not to testify himself, but reasoned that, because he had

testified, the jury could consider his failure to call Ms. Fallin as a witness in assessing the

credibility of his own testimony.

       Jury Instructions and Closing Argument

       Consistent with its ruling during the jury instruction conference, when the Circuit

Court instructed the jury on the law, it included the following missing witness instruction:

              You have heard testimony about Barbara Fallin, who was not
              called as a witness in this case. If a witness could have given
              important testimony on an issue in this case, and the witness
              was peculiarly within the power of the defendant to produce
              but was not called as a witness by the defendant, and the
              action10 of that witness was not sufficiently accounted for or
              explained, then you may decide that the testimony of that
              witness would have been unfavorable to the defendant.

       During the State’s closing argument, the prosecutor referred to Ms. Fallin’s absence

and urged the jury to draw an inference adverse to Mr. Harris. The prosecutor reminded

the jury that defense counsel had identified her as an alibi witness in opening statement,

but had not called her during the defense case and asked rhetorically “Where is his


       10
          The trial transcript indicates that the court referred to “the action of that witness”
instead of “the absence of that witness” as set forth in the pattern jury instruction. We
cannot tell whether this is an error in transcription or in the court’s recitation of the
instruction.

                                              11
mother?” The prosecutor returned to that theme later in his argument, asking: “Who can

attest to the defendant’s whereabouts, other than the defendant?” In response, defense

counsel acknowledged Ms. Fallin’s absence, but contended that the jury should not draw

an adverse inference against Mr. Harris because a “person not testifying is non-evidence.”

In the State’s rebuttal argument, the prosecutor twice returned to the absence of Ms. Fallin.

He reiterated his question “Where is his mother?” and also reminded the jurors that “[t]he

judge has instructed you … that … you can draw a reasonable inference to the fact that her

testimony would have possibly been unfavorable to this defendant.”

       Neither the prosecutor nor defense counsel referred in their arguments to Detective

Gaskins’ testimony that Mr. Harris had invoked his right to an attorney during his police

interview.

       Verdict and Appeal

       The jury found Mr. Harris guilty of second degree assault against Mr. Allen; and

conspiracy to commit robbery with a dangerous weapon, robbery, conspiracy to commit

robbery, conspiracy to commit first-degree assault, second-degree assault, conspiracy to

commit second-degree assault, theft less than $1,000, and conspiracy to commit theft less

than $1,000, all against Ms. Binko. The jury acquitted him of six assault charges, robbery

with a dangerous weapon, and use of a firearm in the commission of a felony or crime of

violence. The Circuit Court later sentenced Mr. Harris to an aggregate 10-year sentence.




                                             12
       Mr. Harris appealed. In an unreported opinion, the Court of Special Appeals

affirmed the convictions.11    Harris v. State, No. 484, 2017 WL 168446 (Md. Ct. Spec.

App. Jan. 17, 2017) (unreported). The intermediate appellate court held that the Circuit

Court erred when it permitted Detective Gaskins to testify that Mr. Harris had requested an

attorney. But the court concluded that, in light of the fingerprint evidence linking Mr.

Harris to the crime, the error was harmless beyond a reasonable because it was a “brief

remark,” and there had been no further reference to it in testimony or argument during the

remainder of the trial. Id. at *5.

       The Court of Special Appeals also found that the trial court did not abuse its

discretion when it gave the missing witness instruction. It reasoned that there was a

sufficient factual basis to support the conclusion that Ms. Fallin’s relationship with Mr.

Harris rendered her testimony unavailable to the State as a practical matter and peculiarly

within Mr. Harris’ control. Thus, his failure to call her as a witness would support an

inference that her testimony would be unfavorable to him. Id. at *11-12. Judge Nazarian

dissented from that holding. He would have held that the Circuit Court abused its discretion

when it gave the missing witness instruction and that, together with the erroneous

admission of testimony concerning Mr. Harris’ invocation of his right to counsel, that error

required reversal of the conviction. Id. at *15.

       We granted certiorari to consider the following issues:


       11
          Agreeing with a concession made by the State, the Court of Special Appeals held
that the trial court erred in imposing multiple sentences for conspiracy and vacated the
sentences for conspiracy to commit theft, conspiracy to commit first degree assault,
conspiracy to commit second degree assault, and conspiracy to commit robbery.

                                             13
       (1)    Whether the Circuit Court abused its discretion when it gave a missing

witness instruction advising the jury that it could draw an inference adverse to Mr. Harris

based on his failure to call his mother as a witness.

       (2)    Whether it was a harmless error when the Circuit Court permitted Detective

Gaskins to testify that Mr. Harris had invoked his right to counsel during a custodial

interview.

       For the reasons set forth below, we hold that the Circuit Court should not have given

the missing witness instruction under the circumstances of this case. Because we reverse

Mr. Harris’ convictions for that reason, and remand the case for a new trial, we need not

address whether the erroneous reference to his invocation of his right to counsel was

harmless.

                                              II

                                 The Missing Witness Rule

A.     Genesis of the Missing Witness Rule

       Although technically not a rule, the concept known as the “missing witness rule”12

refers to the permissible inference that a factfinder may draw from the absence of a

potential witness who might have knowledge of facts at issue in the case. If the factfinder

determines that the witness is “peculiarly available” to one party, the absence of the witness

is ascribed to that party. The factfinder is then permitted to infer that the party did not call




        It is also sometimes referred to as the “empty chair doctrine.” See Joseph F.
       12

Murphy, Jr., Maryland Evidence Handbook (4th ed. 2010 & 2017 Cum. Supp.) at §409[B].


                                              14
the witness because whatever testimony that individual would have given would be

unfavorable to that party.

       Although there are common law antecedents for the doctrine, the current

understanding of the missing witness rule is often traced to a Supreme Court case from the

late nineteenth century. Graves v. United States, 150 U.S. 118 (1893).13 That case

concerned the propriety of a prosecutor’s closing argument to the jury in a criminal case.

In that argument, the prosecutor suggested that the absence of the defendant’s wife from

the trial undermined his alibi defense to a murder charge, although other witnesses had

testified in support of the alibi. The Court summarized succinctly the missing witness rule:

                   The rule, even in criminal cases, is that, if a party has it
            peculiarly within his power to produce witnesses whose testimony
            would elucidate the transaction, the fact that he does not do it creates
            the presumption that the testimony, if produced, would be unfavorable.

150 U.S. at 121.14 While the Supreme Court referred to the missing witness rule as a

“presumption” in Graves, most courts have treated it as a permissible inference rather than

a presumption.15


       13
         See, e.g., Christensen v. State, 21 Md. App. 428, 429-30 (1974), rev’d, 274 Md.
133 (1975); State v. Tahair, 772 A.2d 1079, 1082-83 (Vt. 2001); State v. Brewer, 505 A.2d
774, 776 (Me. 1985); R.H. Stier, Jr., Revisiting the Missing Witness Inference – Quieting
the Loud Voice from the Empty Chair, 44 Md. L. Rev. 137, 138-39 (1985).
       14
          Ironically, perhaps, the Supreme Court reversed the conviction in Graves on the
basis that the missing wife would not have been a competent witness for either side and
therefore the “presumption” would not be appropriate in that case. Thus, its statement of
the missing witness rule was dicta.
       15
         A presumption would require the factfinder to draw the inference unless the party
rebutted it, while a permissible inference would not necessarily require a rebuttal. In the
context of a criminal case, some courts have found the burden-shifting resulting from a

                                              15
       In the years since the Graves decision, developments in constitutional law, changes

in the rules of evidence and discovery, and questions concerning the accuracy of the

adverse inference promoted by the missing witness rule have seriously weakened its

viability – at least in the context of criminal case in which the inference is to be taken

against the defendant. In addition, courts have expressed concerns when the missing

witness rule appears not only in a party’s argument, but is also endorsed in a court’s jury

instruction. In this case we are primarily concerned with the missing witness rule as it

appears in a jury instruction given by the trial court.

B.     Missing Witness Instruction in a Criminal Case

       A trial court’s jury instructions in a criminal case serve a number of purposes. They

provide the jury with general guidelines on how to carry out its duties as factfinder (e.g.,

burden of proof, presumption of innocence, what is and is not evidence). They outline the

law concerning the particular charges in the case and what elements must be proven for the

jury to reach a guilty verdict. They may, as appropriate, provide guidance to the jury on

how to evaluate particular types of evidence or testimony (e.g., expert testimony,

impeachment evidence, other crimes evidence).

       A missing witness instruction calls the jury’s attention to the absence of evidence

(i.e., the imagined testimony of the missing witness), allows the jury to attribute that

absence to one of the parties, and permits the jury to draw a negative inference against that


presumption to be inappropriate as to the defendant. See Russell v. Commonwealth, 223
S.E.2d 877, 879 (Va. 1976); McGlone v. Superior Trucking Co., Inc., 363 S.E.2d 736, 742
(W.Va. 1987) (in the criminal context, a missing witness instruction is “fraught with
constitutional implications not present in a civil case”) (dicta).

                                              16
party for failing to produce that evidence. A missing witness instruction adverse to a

defendant is a rare instance where the trial court endorses an evidentiary inference

promoted by the prosecution – an inference based not on evidence or the conduct of the

defendant, but on the failure of the defendant to produce evidence. Of course, the jury has

little or no basis for assessing the credibility of the imagined testimony of the absent

witness. In that the instruction concerns the weight to be given to potential evidence that

the jury did not hear, it is a cousin of the disfavored “anti-CSI effect” instruction, which

also concerns evidence that theoretically might have been presented to the jury but was

not.16

         1.    Constitutional Considerations

         In many criminal cases, the ultimate “missing witness” may be the defendant, if the

defendant elects not to testify. At the time of the Graves decision, a version of a missing

witness instruction could be given in many jurisdictions as to the failure of a defendant to

testify. For example, in Griffin v. California, 380 U.S. 609 (1965), a California trial court




          In an “anti-CSI effect” instruction, the trial court informs the jury that there is no
         16

legal requirement that the State employ any particular investigative or scientific test to
prove its case. It is designed to counter the perceived expectation that jurors assume that
police always employ sophisticated scientific techniques that are the subject of fictional
police television shows. Although this Court has not declared an “anti-CSI effect”
instruction improper per se, it has discouraged trial courts from giving that instruction and
reversed convictions when the instruction was not appropriate. See Stabb v. State, 423 Md.
454, 462-63 (2011); Atkins v. State, 421 Md. 434 (2011). In Atkins, this Court opined that
“[t]he better practice is for a trial judge to refrain from commenting on inferences to be
drawn by the jury.” 421 Md. at 454 n.8.


                                               17
gave the following instruction to the jury in a murder case – an instruction endorsed by the

California constitution:

              As to any evidence or facts against him which the defendant can
       reasonably be expected to deny or explain because of facts within his
       knowledge, if he does not testify … the jury may take that failure into
       consideration as tending to indicate the truth of such evidence and as
       indicating that among the inferences that may be reasonably drawn therefrom
       those unfavorable to the defendant are the more probable.

380 U.S. at 610. In closing argument, the prosecutor in Griffin also emphasized the adverse

inference to be drawn from the defendant’s failure to testify.

       As is well known, that case found its way to the Supreme Court where the Court

held that the prosecutor’s argument and the trial court’s instruction violated the self-

incrimination clause of the Fifth Amendment – a holding that would apply not only in

federal courts, but also in state courts by virtue of the Court’s then-recent decision in

Malloy v. Hogan, 378 U.S. 1 (1964).

       To the extent that a missing witness instruction appears to require a defendant to

produce certain evidence or suffer adverse consequences, it is also in tension with the

principle that the prosecution must prove each element of a charged criminal offense

beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364 (1970). In a jury

instruction that most criminal litigators could recite in their sleep, a trial court typically

instructs the jury that a defendant is presumed to be innocent, that the State bears the burden

of proof beyond a reasonable doubt throughout the trial of a criminal case, and that the

defendant has no obligation to call witnesses or to present evidence. See, e.g., Maryland

State Bar Association, Maryland Criminal Pattern Jury Instructions (2d ed. 2012), MPJI-



                                              18
Cr 2:02 (Presumption of Innocence and Reasonable Doubt); see also id., MPJI-Cr 3:17

(Election of Defendant Not to Testify).

       It has also been noted that, because the missing witness rule concerns an inference

about the content of testimony from a witness who does not actually testify at trial, it may

also implicate a defendant’s right of confrontation under the Sixth Amendment of the

United States Constitution. See Hayes v. State, 57 Md. App. 489, 499-500 (Bell, J.) cert.

denied, 300 Md. 90 (1984).

       2.     Changes in Evidentiary and Discovery Rules

       Various common law doctrines have been associated with the reasoning underlying

the missing witness rule. However, changes in evidentiary and discovery rules have

rendered those rationales less compelling.

       The missing witness rule was once linked to the common law “voucher rule.” That

was the concept that a party “vouched” for the credibility and veracity of the witnesses that

the party called to the stand. See Walker v. State, 373 Md. 360, 383-84 (2003). Under the

voucher rule, one might assume that the witnesses called by a party would be favorable to

that party’s position and that potential witnesses that the party does not call would be

unfavorable. See, e.g., State v. Tahair, 772 A.2d 1079, 1084 (Vt. 2001); State v. Malave,

737 A.2d 442, 448-49 (Conn. 1999); State v. Brewer, 505 A.2d 774, 776-77 (Me. 1985).

However, modern rules of evidence, such as Maryland Rule 5-607,17 make clear that a


       17
          Maryland Rule 5-607 provides that “[t]he credibility of a witness may be attacked
by any party, including the party calling the witness.” The committee note to that rule
states that it “eliminates the common law ‘voucher’ rule.” Many states have adopted
similar rules which, like the Maryland rule, are based on Federal Rule of Evidence 607.

                                             19
party no longer vouches for a witness by calling that individual to the stand. Indeed, under

Rule 5-607, a party may attack the credibility of a witness that the party calls to the stand.

There is thus no presumption that the witnesses that a party calls will be favorable to it or,

conversely, that those the party does not call will be unfavorable.

       Similarly, as the Supreme Court opinion in Graves indicated, the missing witness

rule was viewed as an incentive for parties to produce as witnesses those individuals who

had knowledge of the facts of a case. However, modern criminal discovery rules provide

for greater exchange of information by parties, such that each party has more information

in advance of trial as to the universe of potential witnesses and their likely testimony. See,

e.g., Tahair, 772 A.2d at 1084; Malave, 737 A.2d at 447; Brewer, 505 A.2d at 777 n.2 (Me.

1985); cf. McGlone v. Superior Trucking Co., Inc., 363 S.E.2d 736, 742 (W.Va. 1987). For

example, under Maryland Rule 4-263(e)(4), a defendant in a criminal case who intends to

present an alibi defense must identify for the State the individuals that the defendant plans

to call to support the alibi.18



       18
         Some have also related the missing witness rule to the spoliation doctrine and the
best evidence rule. See Stier, note 13 above, at 139-43.

        The spoliation doctrine, when incorporated in a jury instruction, refers to the
destruction or concealment of evidence by a party – conduct of that party that may reveal
the party’s intent. See e.g., Maryland State Bar Association, Maryland Criminal Pattern
Jury Instructions (2d ed. 2012), MPJ1-Cr 3:26 (concealment or destruction of evidence as
consciousness of guilt), MPJI-Cr 3:27 (suppression, alteration or creation of evidence as
consciousness of guilt); Maryland State Bar Association, Maryland Civil Pattern Jury
Instructions (5th ed. 2017) MPJI-Cv 1:16 (spoliation). By contrast, the missing witness rule
is based on a party’s litigation decision – what in fact may be counsel’s decision – whether
to call a particular witness to the stand.


                                             20
       3.     Accuracy of the Rationale of the Missing Witness Rule

       The rationale for the missing witness rule is at best questionable. See Tahair, 772

A.2d at 1084; Malave, 737 A.2d at 449. Most experienced litigators prefer to try a “lean”

case – or come to regret it if they do not.19 Counsel seldom call every witness who may

have favorable testimony. There may be many reasons why a potential witness does not

make the cut, few of which have anything to do with whether what the witness would say

would be favorable to the party. As one court has noted, “the decision to call a witness

often turns on factors which have little to do with the actual content of the [witness’]

testimony. Considerations of cumulation and jury fatigue may preclude calling a witness

who is entirely helpful; calculations that a witness may help a lot but hurt a little may

compel restraint when counsel believes that [a] burden is already met. … [Q]uestions of

demeanor and credibility, hostility, and the like may influence” a decision not to call a

witness whose testimony would be favorable. United States v. Busic, 587 F.2d 577, 586

(3d Cir. 1978), rev’d on other grounds, 446 U.S. 398 (1980).

       In light of the potential inaccuracy and unfairness of the missing witness rule, courts

have added various qualifications and conditions for its use and “erect[ed] procedural


       The best evidence rule governs what may be admitted to prove the content of a
writing, recording, or photograph. See, e.g., Maryland Rule 5-1001 et seq. It is only
distantly related, if at all, to the missing witness rule in that provides direction to a court
whether to admit a duplicate or other evidence of contents when the “best evidence” (the
original) is absent.
       19
          Many readers of appellate opinions would probably prefer that the writer of an
appellate opinion produce a “lean” opinion and regret it when the writer does not. But this
may simply be another instance in which an appellate judge is different from a litigator.


                                              21
barriers for counsel to surmount before the substantive propriety of the inference will even

be considered.” R.H. Stier, Jr., Revisiting the Missing Witness Inference – Quieting the

Loud Voice from the Empty Chair, 44 Md. L. Rev. 137, 151 (1985). An attempt in 1985

to simply restate the missing witness rule with all its accrued qualifications and conditions

found that the succinct single sentence of Graves had ballooned into the better part of two

pages of a law review article. Id.

       4.       Abandonment of the Missing Witness Instruction in Other Jurisdictions

       A growing number of jurisdictions have limited the use of a missing witness

instruction in criminal cases, at least to the extent that it would allow an adverse inference

based on the failure of a defendant to call a witness.

       State Jurisdictions

       Courts in some states have severely limited the use of a missing witness instruction.

For example, in State v. Hill, the New Jersey Supreme Court stated:

                   We now hold that Clawans charges [the New Jersey term for a
            missing witness instruction] generally should not issue against criminal
            defendants. The inclusion in a criminal trial of a Clawans charge from
            the court risks improperly assisting the State in its obligation to prove
            each and every element of the charged crime beyond a reasonable
            doubt.

974 A.2d 403, 416 (N.J. 2009). See also Commonwealth v. Shatret, 499 N.E. 2d 1208,

1211 (Mass. App. 1986) (“Circumspection in this matter is especially called for where the

inference would run against a defendant in a criminal prosecution, for the inference may

come uncomfortably close to involving constitutional rights”).




                                               22
         Other states have completely abandoned the use of a missing witness instruction in

criminal cases with respect to defendants. One state supreme court has noted the “growing

wariness” about the use of the instruction in criminal cases and opined that the missing

witness instruction has “outlived its usefulness in criminal trials and should be abandoned.”

State v. Tahair, 772 A.2d 1079, 1080, 1083 (2001); see also State v. Brewer, 505 A.2d 774

(Me. 1985); State v. Malave, 737 A.2d 442 (Conn. 1999).

         Some state supreme courts still allow a prosecutor to argue a missing witness

inference in appropriate circumstances, but hold that endorsement of the inference “has no

proper place in the judge’s statement of the law” and that a missing witness instruction

“even in its limited and restricted uses, brings about more problems than solutions.” State

v. Hammond, 242 S.E.2d 411, 416 (S.C. 1978); see also Henderson v. State, 367 So.2d

1366, 1368 (Miss. 1979) (adopting rationale of Hammond).

         Finally, some state supreme courts have not only abolished a missing witness

instruction with respect to a potential but absent defense witness, but have also forbidden

prosecutorial argument based on the “missing witness rule” as impermissibly shifting the

burden of proof. See Ross v. State, 803 P.2d 1104, 1105 (Nev. 1990); State v. Caron, 218

N.W. 2d 197, 200 (Minn. 1974); State v. Jefferson, 353 A.2d 190, 199 (R.I. 1976) (adopting

rationale of Caron), overruled on other grounds, State v. Caruolo, 524 A.2d 575 (R.I.

1987).

         Federal Jurisdictions

         In the federal courts, the vast majority of cases concerning missing witness

instructions deal with whether a trial court should have given such an instruction involving


                                             23
an inference against the government rather than against the defendant. Indeed, the pattern

instructions in a number of circuits advise trial courts not to give such an instruction with

respect to a defendant. K. F. O’Malley, et al., 1A Federal Jury Practice and Instructions

(6th ed. & Feb. 2018 update) §14.15. For example, the missing witness instruction in the

First Circuit refers only to a missing government witness. Although the commentary

allows for the possibility it could be revised to apply a potential defense witness, it states

that a trial court should “exercise extreme caution” in doing so and should reiterate, as part

of any such instruction, the principle that there is no obligation on the defendant to call any

witnesses or produce any evidence. Id. In the Seventh Circuit, “[i]t is the view of the

Committee that a missing witness instruction should not be given.” Id. (adding that any

such instruction should reiterate the principle that a defendant has no duty to call witnesses

or produce evidence).      The Eighth Circuit does not have a model missing witness

instruction because of the “limited circumstances” in which it would be appropriate and

provides that such an instruction should never be given in a case where a defendant has

offered no evidence. Id.

C.     The Evolution of the Missing Witness Rule in Maryland

       Maryland appellate courts have also treated the missing witness rule with some

skepticism – at least insofar as it involves a jury instruction that authorizes a jury to draw

an inference adverse to a defendant in a criminal case.




                                              24
       1.      Christensen – a Preferred Procedure; Requiring a No-Inference Instruction

       This Court first grappled with the appropriateness of a missing witness inference in

the modern era in Christensen v. State, 274 Md. 133 (1975).20 The Christensen decision is

significant for (1) its holding that the use of the missing witness inference against a

defendant is constrained by the constitutional principles that govern criminal trials and (2)

dicta concerning the procedure to be followed when a party seeks a missing witness

instruction.

       That case concerned an alleged rape. At trial, neither the prosecution nor the defense

called an alleged accomplice to the crime as a witness. In closing argument, the prosecutor

suggested that the jury should draw an inference adverse to the defendant from the absence

of that potential witness. The defense requested that the trial court instruct the jury to the

contrary – that the defendant had no duty to produce the alleged accomplice and that no

inference could be taken against the defendant for not doing so. The requested instruction

was precisely the opposite of a missing witness instruction – what might be called an “anti-

missing witness” or “no-inference” instruction. The trial court declined to give a no-

inference instruction.

       Following the defendant’s conviction, he challenged the constitutionality of the use

of the missing witness rule in criminal cases. In a unanimous decision authored by Judge



       20
          This was apparently the first reported instance in which the missing witness rule
was invoked in a criminal case in Maryland. See Bing Fa Yuen v. State, 43 Md. App. 109,
111 (1979) (“[U]ntil Christensen…, Maryland had never recognized the application of the
rule in criminal cases.”).


                                             25
Marvin Smith, the Court did not reach the constitutional issue 21 because it held that the

missing witness inference did not apply in a situation, like the case before it, involving a

defendant-accomplice relationship. 274 Md. at 134-35 (quoting 1 Underhill, Criminal

Evidence §45 (rev. 6th ed. 1973) and citing 1 Wharton, Criminal Evidence §148 (13th ed.

1972)). The Court noted that an alleged accomplice might well assert his Fifth Amendment

privilege not to testify and thus prove unavailable, even if his testimony would exculpate

the defendant on trial. 274 Md. at 140. Thus, Judge Smith wrote, “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.” Id.

       The Court also held that the trial court should have given the defendant’s requested

no-inference instruction – that no inference could be drawn against the defendant with

respect to the absence of the alleged accomplice – and remanded the case for a new trial.

Id. In holding that the trial court should have instructed the jury that it could not draw an

inference adverse to the defendant, the Court implicitly also found the prosecutor’s

argument that the jury should draw an adverse inference to be improper.

       The Christensen case thus did not concern whether a trial court should give – or

decline to give – a missing witness instruction. Rather, it held that the missing witness

rule, whether in argument or instruction, had no place in the case before it. Accordingly,


       21
          A couple years later, the Court of Special Appeals appeared to register a complaint
that this Court had dodged the constitutional issue that the intermediate appellate court had
teed up in Christensen. See Pierce v. State, 34 Md. App. 654, 658-59, cert. denied, 280
Md. 732, cert. denied, 434 U.S. 907 (1977).

                                             26
a defendant in a criminal case may actually be entitled to what amounts to an “anti-missing

witness instruction” in certain circumstances22 – i.e., the jury may not draw an adverse

inference against the defendant – in light of the constitutional principles that govern

criminal trials. However, the Court did not rule out the possibility that a missing witness

instruction might be appropriate in some circumstances. In a footnote, the Court indicated

the “preferred procedure” that a trial court should follow when a missing witness

instruction is requested and quoted at length from a decision of the New Jersey Supreme

Court describing that procedure. Id. at 135 n. 1 (quoting State v. Clawans, 183 A.2d 77

(N.J. 1962)).23

       Under the “preferred procedure,” the party seeking a missing witness instruction

concerning the opposing party’s failure to call a witness is to advise the trial court and

opposing party of its intention out of the presence of the jury at the close of the opposing

party’s case. The opposing party should then be given an opportunity to call the missing

witness or to demonstrate to the court “by argument or proof the reason for the failure to


       22
          The Court of Special Appeals has characterized the instruction required in
Christensen as a “preclusory instruction” while characterizing a missing witness
instruction as a “highlighting instruction” – i.e., the instruction required in Christensen
would preclude a jury from drawing an adverse inference while a missing witness
instruction highlights that an adverse inference may be drawn. Bing Fa Yuen, 43 Md. App.
113 n.1.

       Whether, as a matter of litigation strategy, a defendant would actually insist on such
a preclusory instruction is another matter. Sometimes telling someone not to think about
something is a sure way to get them to think about it.
       23
         As noted earlier, the New Jersey Supreme Court subsequently held that a Clawans
charge should not be given in a criminal case concerning the absence of a witness thought
to be favorable to the defendant. See Part II.B.4 of this opinion.

                                             27
call” the witness. 274 Md. at 135 n.1. The trial court would then determine whether a

missing witness inference is appropriate or not. Id.

       2.     Robinson – Missing Witness Argument versus Jury Instruction

       While the Christensen decision constrained the use of a missing witness instruction

in a criminal case both substantively and procedurally, the Court’s next treatment of the

missing witness rule appeared to accept a broader use of a missing witness instruction in a

criminal case, although the Court was closely divided on the propriety of that instruction.

In Robinson v. State, 315 Md. 309 (1989), the defendant was convicted of an offense related

to his use of a stolen car. At trial, the defendant testified that he had received the car from

a friend named “Alvin Johnson” whom, he said, he had pointed out to the police. “Alvin

Johnson” was not called as a witness, and the trial court gave a missing witness instruction

that permitted the jury to draw an inference adverse to the defendant. Following his

conviction, the defendant appealed on the ground that the trial court should not have given

the missing witness instruction.

       In a 4-3 decision, this Court held that the missing witness instruction was

appropriately given. It observed that Alvin Johnson’s existence and involvement were

established only by the defendant’s own testimony and that it was not uncommon for a

person found in possession of stolen property to fabricate a story that another person had

provided the stolen property. 315 Md. at 316-17. The majority opinion conceded that

Alvin Johnson, if he existed, would have a Fifth Amendment right not to testify, but noted

that he could have been called and questioned outside the presence of the jury to determine

whether he would invoke his privilege not to testify. The majority opinion also equated


                                              28
the circumstances under which a prosecutor could argue a missing witness instruction with

those under which a trial court could give such an instruction:

          If the argument fairly may be made, then it stands to reason that a
          sufficient foundation of facts exists upon which the inference may be
          drawn. Where the inference may be drawn, it will ordinarily be within
          the discretion of the trial judge to grant or refuse a missing witness
          instruction.

Id. at 318-19 (footnotes omitted). However, in a footnote, the majority opinion emphasized

that a trial court is not required to give the instruction. Id. at 319 n. 7.

       In a dissenting opinion joined by Judge Eldridge and Judge Cole, Judge William H.

Adkins II observed that “courts have reacted to the [missing witness] rule’s potential

inaccuracy and unfairness by decreasing the number of situations in which the adverse

inference might be applied” and cited, as an example, the “prudent limitation” set forth in

the Christensen decision. 315 Md. at 323 (quoting Stier, 44 Md. L. Rev. at 151). Judge

Adkins also observed that the “inference is at best a weak one” and that it raises

constitutional issues in the criminal context. Id. at 323 n.1. He argued that the Christensen

decision, properly applied, precluded a missing witness instruction in the case before the

Court. In contrast to the majority opinion, Judge Adkins suggested that there should be a

higher bar for a jury instruction endorsing a missing witness inference, even if the

prosecutor in argument might legitimately ask the jury to draw that inference:

                 The issue in this case … is not what inferences the jury might
          have drawn or what arguments might be proper. … The issue is whether
          it was proper for the judge to give the instruction he gave. That
          instruction … added a judicial imprimatur to the adverse inference that
          might be drawn from [Johnson’s] absence.

Id. at 327 n. 2.


                                               29
       3.      Davis – Cautioning Against an Instruction Even if Argument is Proper

       By the next time the Court addressed the missing witness rule at length, Judge

Adkins had left the Court, but his distinction between what is permissible in argument and

what may be the subject of a jury instruction became the centerpiece of a unanimous

portion of the Court’s opinion.24 Davis v. State, 333 Md. 27 (1993), overruled on other

grounds, Pearson v. State, 437 Md. 350 (2014).

       In that case, the defendant was charged with various drug offenses as a result of his

presence with cash at a drug deal. The defendant testified that he was present at the scene

of the drug deal because he was on his way to buy food for his family; another defense

witness testified that the defendant had received $10 from his wife for that purpose; the

wife, though present in the courtroom, was not called to testify. 333 Md. at 47. During

the State’s closing argument, the prosecutor posed the question of why the wife had not

been called to testify if she would have corroborated the defense. Id. at 47-48. While the

trial court overruled a defense objection to that argument, it did not give a missing witness

instruction itself.

       On appeal, the defendant contended that the trial court had erred in permitting the

prosecutor to make an argument that the jury could draw an inference adverse to him from

the failure of his wife to testify. The Court rejected that contention, holding that the marital

relationship was sufficiently close as to render the wife peculiarly available to the



       24
          The Davis Court splintered on the other main issue before it, which concerned
voir dire procedure, but neither the concurring opinion nor dissenting opinion expressed
disagreement with the majority opinion’s holding on the missing witness issue.

                                              30
defendant. 333 Md. at 50-51. The Court went on to emphasize that the missing witness

inference was raised in the State’s closing argument rather than in a jury instruction by the

trial court. Stating that the prerequisites of the missing witness rule must be “more rigidly

applied” for a jury instruction to be given, the Court drew a contrast between the two ways

in which the adverse inference could be suggested to the jury:

                   Where a party raises the missing witness rule during closing
            argument, its use is just that – an argument. Trial judges typically
            instruct the jury, as in this case, that the parties’ arguments do not
            constitute evidence ….

                    In contrast to the argument context is the trial judge’s instruction
            to the jury. In [that] case, the inference is communicated to the jury as
            part of the judge’s binding jury instructions, creating the danger that
            the jury may give the inference undue weight. [A] trial court should
            be especially cautious and closely abide by the requirements set out in
            Christensen.

Id. at 52. See also Patterson v. State, 356 Md. 677 (1999) (trial court properly allowed

counsel to make “missing evidence” argument while declining to give “missing evidence”

jury instruction); Lowry v. State, 363 Md. 357, 371-75 (2001) (same); Bruce v. State, 318

Md. 706 (1990) (there was a sufficient basis for prosecutor to make missing witness

argument with respect to defendant’s girlfriend, when defendant testified he was with the

girlfriend on the day of the murder).

       4.       Bereano – The Need for Adequate Notice

       This Court’s most recent consideration of the missing witness rule occurred 10 years

ago in the context of a case arising out of a civil administrative proceeding in which the

State Ethics Commission decided that a lobbyist had violated the Public Ethics Law.

Bereano v. State Ethics Commission, 403 Md. 716 (2008). In a 5-2 decision, the Court


                                                31
held that the Commission had erred in relying on the missing witness rule as part of its

reasoning in its written decision. As the issue arose in a civil context and involved neither

a closing argument to a jury nor a jury instruction, the circumstances are readily

distinguishable from those of this case. Nonetheless, Judge Harrell’s careful consideration

of the underpinnings and operation of the missing witness rule in the court’s majority

opinion is instructive.

       After surveying a number of authorities and cases in Maryland and elsewhere, the

majority opinion concluded that the justification for the inference was “limited,” that many

courts had accordingly curtailed its use, and that it should be invoked “prudently.” 403

Md. at 751-55. The majority opinion noted that, “(b)ecause of the limited justification for

the rule and the chance of an erroneous inference being drawn, courts often require early

notice from a party intending to make a missing witness argument or intending to request

such an instruction.” Id. at 752 (internal quotation marks and citation omitted). The

majority opinion was troubled by the fact that no notice had been given that the agency

would rely on a missing witness rule before it drew an adverse inference based on that

doctrine in its written decision and that no findings had been made as to the prerequisites

for application of the missing witness rule – e.g., the peculiar availability of the witness to

one side.

       5.     Summary

       The following principles concerning the missing witness rule can be derived from

this Court’s decisions described above:




                                              32
   •        Basic prerequisites:

            (1) There is a witness
            (2) Who is peculiarly available to one side because of a relationship of interest
                or affection
            (3) Whose testimony is important and non-cumulative
            (4) Who is not called to testify25

   •        Whether a Witness is Peculiarly Available:

            An accomplice-defendant relationship does not necessarily mean that the
            accomplice is “peculiarly available” to the defendant given the possibility that
            the accomplice would assert the privilege against self-incrimination. A witness
            who will assert the privilege against self-incrimination is not “available” and
            cannot be the subject of a missing witness instruction. If a “missing” witness
            claims his or her privilege against self-incrimination, that claim may be tested
            outside the jury’s presence. Christensen, Robinson.

   •        Missing Witness Argument versus Missing Witness Instruction:

            In cases in which it may be appropriate for the prosecutor to ask the jury to draw
            a missing witness inference adverse to the defendant, the trial court should not
            necessarily give a missing witness instruction. A trial court should be
            “especially cautious” in considering whether to give a missing witness
            instruction adverse to a defendant in a criminal case. Davis.

   •        Procedure:

            When a party intends to ask the trial court to give a missing witness instruction,
            the party should give advance notice to the opposing party and raise the issue at
            a time when the opposing party has an opportunity to call the allegedly missing
            witness or provide proof that the witness is not peculiarly available to that party.
            Christensen, Bereano.

   •        No-Inference Instruction:

            In some circumstances in which a defendant has not called a witness that might
            be thought to be favorable to the defendant, the trial court may not give a missing
       25
          This formulation has been stated and applied by the Court of Special Appeals on
several occasions, including this case. Harris, 2017 WL 168446 at *8; see also Woodland
v. State, 62 Md. App. 503, 510, cert. denied, 304 Md. 96 (1985); see also Dansbury v.
State, 193 Md. App. 718, 742 (2010).

                                               33
            witness instruction and, indeed, could be required to give, at the defendant’s
            request, an instruction that no adverse inference should be drawn by the jury
            against the defendant. Christensen.

                                             III

                                        Discussion

A.     Standard of Review

       In a criminal jury trial, the trial court “may, and at the request of a party shall,

instruct the jury as to the applicable law and the extent to which the instructions are

binding.” Maryland Rule 4-325(c).26 Instructions on the law may cover such things as the

burden of proof, presumption of innocence, and the elements of the crimes charged.

However, instructions as to facts and factual inferences are normally not required.

Patterson v. State, 356 Md. 677, 684 (1999). A missing witness instruction, which

concerns an inference to be drawn from evidence – or the lack thereof – is of the latter

variety. Thus, a trial court has discretion not to give a missing witness instruction even if

a party requests the instruction and the necessary predicate for such an instruction has been

established. See Robinson, 315 Md. at 319 n.7. A trial court has no discretion to give a

missing witness instruction where the facts do not support the inference. Id.

       We review a trial court’s decision to give a jury instruction concerning inferences

to be drawn from the absence of evidence for abuse of discretion. See Hall v. State, 437

Md. 534, 539 (2014) (review of trial court’s decision to give “anti-CSI effect” instruction).

A trial court abuses its discretion if it commits an error of law in granting or denying a


       26
          The court need not give a requested instruction if the matter is fairly covered by
the instructions actually given. Maryland Rule 4-325(c).

                                             34
request for such an instruction. Id. “Thus, while the trial court has discretion, we will

reverse the decision if we find that the defendant’s rights were not adequately protected.”

Cost v. State, 417 Md. 360, 368-69 (2010) (review of trial court’s decision whether to give

“missing evidence” instruction).

B.     Whether the Circuit Court Erred in Giving a Missing Witness Instruction

       Failure to Follow the Preferred Procedure

       In deciding to give the missing witness instruction as to Ms. Fallin, the Circuit Court

did not follow the “preferred procedure” set forth in Christensen.          As indicated in

Christensen and emphasized in Bereano, that procedure provides a party with notice of a

trial court’s intention to give the proposed instruction and an opportunity for the party

either to call the witness or to persuade the court that the prerequisites of missing witness

rule are not established.

       In this case that procedure was essentially followed in the Circuit Court’s

consideration of a potential missing witness instruction adverse to the State.           The

possibility that the court would give a missing witness instruction concerning Reds and the

then-missing Mr. Allen was first broached in a pretrial conference. The prosecution later

located and called Mr. Allen as a witness. In opposing such an instruction as to the still-

missing Reds, the prosecutor was able to refer to the commentary that accompanies the

pattern missing witness jury instruction and successfully argue to the Circuit Court that the

criteria for giving the instruction were not met as to Reds.

       By contrast, the prosecution provided no notice of an intention to ask for a missing

witness instruction as to Ms. Fallin. Indeed, the prosecutor only made the request after the


                                             35
Circuit Court initiated the idea during the jury instruction conference after both parties had

rested. The only rationale for the instruction offered by the prosecutor was that Ms. Fallin

had been mentioned in the defense opening statement. As a result of the lack of notice,

perhaps, the discussion of the merits of giving the instruction with respect to the absence

of Ms. Fallin was truncated.

       Application of the Peculiar Concept of Peculiar Availability

       In considering whether to give the missing witness instruction as to Ms. Fallin, the

Circuit Court understood that an absent witness must be “peculiarly available” to one side

for the missing witness rule to be invoked. However, its consideration of that issue was

limited. It was undisputed that Ms. Fallin was physically available to both the prosecution

and the defense and could have easily been subpoenaed by the State as well as Mr. Harris.

The question was whether she was unavailable to the State as a practical matter. The

Circuit Court relied solely on the fact that she was the mother of Mr. Harris.

       Although courts have referred to relationships of “interest or affection” as

supporting such a finding, a mother-son relationship does not per se render a mother

“peculiarly available” to her son. See Dansbury v. State, 193 Md. App. 718, 748 (2010)

(defendant’s mother and aunt not peculiarly available to defendant when they were outside

the courtroom during trial); Hayes v. State, 57 Md. App. 489, 499-500, cert. denied, 300

Md. 90 (1984) (defendant’s brother-in-law not peculiarly available to defendant); see

generally Annotation, Adverse presumption or inference based on party’s failure to

produce or examine family member other than spouse – modern cases, 80 ALR 4th 337,

§5. “The mere fact that a witness may personally favor one side over the other does not


                                             36
make that witness peculiarly unavailable to the other side.” Bereano 403 Md. at 744. In

this case, the Circuit Court’s analysis began – and ended – with the family relationship

between Mr. Harris and Ms. Fallin: “It’s his mother.”

       In its opinion, the Court of Special Appeals supplemented the Circuit Court’s

analysis with additional facts culled from the record which, it believed, supported the

premise that Ms. Fallin was peculiarly available to Mr. Harris and would be expected to

favor him in any testimony. In addition to the family relationship cited by the Circuit

Court, the intermediate appellate court noted that:

       (1) Ms. Fallin allowed Mr. Harris to live with her from November 2013 through
           January 2015 without paying rent;

       (2) Mr. Harris had given his mother $75,000 from a worker’s compensation
           settlement that he had received for his injured hand in 2008 or 2009 –
           approximately six years before the trial;

       (3) Ms. Fallin attended the court proceedings on the first day of trial and had brought
           clothes for Mr. Harris.
2017 WL 168446 at *11.27

       Of the additional facts cited by the Court of Special Appeals, only items 1 and 2

were known to the jury from testimony. (As to item 1, the intermediate appellate court

apparently mis-read the record, as the end date should have been January 2014 rather than

January 2015 and his period of residence two months rather than 14 months. Mr. Harris


       27
         The intermediate appellate court numbered some of these items differently in its
opinion. The Court of Special Appeals also noted that Mr. Harris had testified that Ms.
Fallin was the only person who could corroborate his alibi. However, that fact appears to
concern whether her testimony would be important, rather than whether she was peculiarly
available to him rather than the State.


                                             37
was arrested in February 2014 and remained in custody as of the time of trial in January

2015). The events cited in items 1 and 2, which preceded the trial by one year and six

years, respectively, seem to add little to the idea that Ms. Fallin was “peculiarly available”

to Mr. Harris besides the fact that she was his mother.

       Item 3 – Ms. Fallin’s presence in the courtroom and the possibility that she or Mr.

Harris’ estranged wife would bring clothes for him28 – was discussed outside the presence

of the jury. A court may well decline to give a missing witness instruction based on

information not before the jury – i.e., the likelihood that the witness would invoke the Fifth

Amendment right to remain silent. However, it would be odd for a court to tell a jury that

it may draw an inference adverse to one party if it finds that the witness is peculiarly

available to that party when the information on which the court believes such an inference

could be based is unknown to the jury.

       Not listed among the additional facts considered by the Court of Special Appeals

was other evidence elicited at the trial that suggested that Ms. Fallin might not be peculiarly

available to Mr. Harris. For example, she had cooperated with the police and consented to

a search of her home, and she had apparently asked Mr. Harris to leave her home sometime

in 2014.

       In any event, the Circuit Court cited none of the additional facts listed by the Court

of Special Appeals. Nor did the prosecutor refer to them when he argued for the instruction



       28
          Although there was a discussion between the court and counsel as to whether the
wife or Ms. Fallin would bring clothes for Mr. Harris, the record does not indicate whether
either of them actually did so.

                                              38
during the jury instruction conference. The prosecutor’s request for the instruction was

based solely on the fact that Ms. Fallin had been mentioned in opening statement; the

Circuit Court’s decision to give an instruction inviting the jury to draw an inference adverse

to Mr. Harris from her absence appeared to be based only on the family relationship

between Ms. Fallin and Mr. Harris.

       In a case involving similar circumstances, the Court of Special Appeals held that it

was error to give a missing witness instruction. In Dansbury v. State, 193 Md. App. 718

(2010), the defendant, who was charged with rape, testified in his own defense that he had

a consensual sexual encounter with the alleged victim. According to the defendant’s

version, his mother and aunt, among others, were witnesses to the events surrounding that

encounter. However, neither the mother nor the aunt were called as witnesses at the trial.

The trial court sua sponte decided to give a missing witness instruction adverse to the

defendant without considering, aside from their family relationship, whether the missing

witnesses were peculiarly available to the defendant. Following his conviction, the

defendant appealed. The Court of Special Appeals held that the trial court had abused its

discretion in giving the missing witness instruction and reversed the conviction. Among

other things, the intermediate appellate court noted that the trial court had not followed the

“preferred procedure” set forth in Christensen, that the aunt and mother had been outside

the courtroom during the trial and thus physically available to both sides, and that there




                                             39
had been no finding that they were “peculiarly available” to the defendant. 194 Md. App.

At 748-50.29

       The Instruction Given

       The missing witness instruction that was given at trial in this case tracked the model

instruction currently found in Maryland State Bar Association, Maryland Criminal Pattern

Jury Instructions (2d ed. 2012) MPJI-Cr 3:29.30 In that instruction, the Circuit Court made

specific reference to Ms. Fallin and told the jury that, if she “was peculiarly within the

power of [Mr. Harris] to produce” but was not called as a witness – she was not – and if

her absence was “not sufficiently accounted for or explained” – there was nothing before

the jury as to why she was absent – then the jury could “decide that [her] testimony …

would have been unfavorable to [Mr. Harris].” No direction was given to the jury as to

how it should determine whether Ms. Fallin was “peculiarly within the power” of Mr.

Harris. “Unfavorable” in this context – where the jury was called upon to determine



       29
          Assuming for the sake of argument that a family relationship alone could establish
that a witness is peculiarly available to one side, the Court of Special Appeals noted that
the instruction in that case had included other potential defense witnesses and had not
referred to potential prosecution witnesses. 193 Md. App. at 749. The intermediate
appellate court also questioned an underlying premise for a missing witness instruction –
i.e., whether the “missing witnesses” would actually have any relevant testimony to give.
Id. at 749-50.
       30
          A somewhat different model appears in another treatise on Maryland criminal
jury instructions and ends with the admonition that “You must remember that a defendant
is not obligated to produce any evidence or call any witnesses.” 1 David E. Aaronson,
Maryland Criminal Jury Instructions and Commentary (2017 ed.) at §2.59(A).
Interestingly, no missing witness instruction appears in the model civil jury instructions.
See Maryland State Bar Association, Maryland Civil Pattern Jury Instructions (5th ed.
2017).

                                             40
whether Mr. Harris was present at Ms. Binko’s apartment on January 16, 2014 – could only

mean that Ms. Fallin would not back up Mr. Harris’ testimony that he had spent that

evening with Ms. Fallin.

       Boiled down to its essence, the missing witness instruction invited the jury to

disbelieve Mr. Harris’ testimony if it concluded that Ms. Fallin was “peculiarly within his

power” to produce, however it might understand that condition. The instruction also could

have led the jury to believe, incorrectly, that Mr. Harris bore a burden of proof in presenting

an alibi defense.31

       The Missing Witness Inference in the State’s Argument

       As alluded to earlier, there are cases in which it may be appropriate for the

prosecutor to ask the jury to draw a missing witness inference, even though the court should

not endorse that particular inference in its instructions. This is such a case. In his opening

statement in this case, defense counsel had told that jury that he would present an alibi

through the testimony of Ms. Fallin. When the defense substituted the defendant as its

witness on his whereabouts, it was fair game for the prosecutor to point out that the defense

had not presented the evidence from Ms. Fallin that it had promised, as it would have been




       31
           An alibi is not an affirmative defense but simply negates an element of the crime
– i.e., criminal agency, an element of the crime that must be proven by the State. The
defendant does not bear the burden of proof on that issue. In re Parris W., 363 Md. 717,
728-29 (2001); Simms v. State, 194 Md. App. 285, 308 (2010), aff’d, 420 Md. 705, 722
(2011).


                                              41
fair game for the prosecutor to spotlight any other discrepancy between what the defense

promised and what it produced.32 However, it is not fair game for the trial court to do so.

       Summary

       It is frequently said that we presume that trial judges know and apply the law in

making rulings and rendering decisions, unless we have reason to think otherwise. E.g.,

Medley v. State, 386 Md. 3, 7 (2005) (“[A]bsent a misstatement of law or conduct

inconsistent with the law, a trial judge is presumed to know the law and apply it properly.”)

(citations and internal quotation marks omitted). There is perhaps reason to think otherwise

in this case. One would expect a trial court that knew and understood the law to follow the

“preferred procedure” set out in Christensen and to be “especially cautious,” as advised in

Davis, when the idea of a missing witness instruction adverse to the defendant is broached.

Instead, it appears from the record that it was the Circuit Court, rather than the parties, that

initiated the idea of a missing witness instruction. There was apparently no effort to adhere

to the “preferred procedure” for considering such an instruction adverse to a defendant. In

deciding whether to give the instruction, the trial court relied solely on the fact that Ms.

Fallin was the mother of Mr. Harris.

       The instruction should not have been given in this case. We agree with observations

made by Judge Nazarian in his dissent in the Court of Special Appeals:



       32
          Presciently, during a pretrial conference concerning how the attorneys would
describe the physical condition of Mr. Harris’ left arm and hand in opening statements,
defense counsel observed: “[I]t’s been my experience that whenever I’ve made a statement
– a proffer to the jury in opening statements – and I haven’t been able to back that up, it
has come back to bite me very hard.”

                                              42
                    The State, not Mr. Harris, bore the burden of proof in this case,
            and Mr. Harris was not obligated (even if it might have bolstered his
            defense) to corroborate independently his sworn testimony about his
            whereabouts. The State had the same opportunity to subpoena Ms.
            Fallin as Mr. Harris did, and didn’t ask for the opportunity to subpoena
            and call her as a rebuttal witness when it learned that Mr. Harris wasn’t
            going to call her. There is no dispute that the State was entitled in
            closing to note her absence or to question the veracity of Mr. Harris’s
            testimony, and that the jury would be entitled to disbelieve him. But it
            is another thing altogether to have the court instruct the jury, as it did
            here, that Ms. Fallin’s absence from the witness stand permits the jury
            to infer that the testimony would have been unfavorable to the party
            who failed to call such witness, especially without first following the
            “preferred procedure” of advising the parties of its intention to give the
            charge at the close of defense’s case. Under these circumstances, the
            judicial thumb on the scale was not warranted …

Harris v. State, 2017 WL 168446 at *15 (January 17, 2017) (Nazarian, J., dissenting)

(quotation marks and citations omitted).

       We do not rule out the possibility that there may be the rare criminal case in which

a missing witness instruction adverse to a defendant may be appropriate, although it is

difficult to foresee what those circumstances might be. Such an instruction should rarely,

if ever, be given. See State v. Hill, 974 A.2d at 416 (“Although we will not engage in

hypothetical discussions of possible situations in which a negative inference might be

argued to arise, suffice it to say that it would be a rare case”).

       Whether the Error was Harmless

       Under Maryland Rule 8-131(b),33 we consider whether the error in giving the

missing witness instruction was harmless. An error by trial court is harmless only if a



       33
            Maryland Rule 8-131(b) provides, in pertinent part:


                                               43
reviewing court “is able to declare a belief, beyond a reasonable doubt, that the error in no

way influenced the verdict.” See Dorsey v. State, 276 Md. 638, 659 (1976).

       This was a close case34 in which the missing witness instruction concerning Ms.

Fallin might well have been a critical factor, as evidenced by the fact that the jury

deliberations lasted nearly as long as the presentation of evidence35 and one of the jury

questions asked for Ms. Fallin’s address. While Mr. Harris’ alibi was uncorroborated, the

bulk of the evidence at trial tended to undermine his identification as the suspect. Neither

Ms. Binko nor Ms. Holmes nor Mr. Allen identified him as the unmasked robber called

Black. Nor was there any indication that the elusive Reds, were she ever found, would tie

him to the crime.

       Mr. Harris testified that his left arm had limited functionality and that he could not

grasp items. The Circuit Court acknowledged that Harris’s left arm was visibly “not quite

normal or regular.” This was inconsistent with the fact that, according to Ms. Binko, Black

used both his hands without difficulty during the robbery and their struggle. Moreover, the


            Whenever an issue raised in a petition for certiorari … involves, either
            expressly or implicitly, the assertion that the trial court committed
            error, the Court of Appeals may consider whether the error was
            harmless or non-prejudicial even though the matter of harm or
            prejudice was not raised in the petition ….
       34
          In a pretrial conference, the prosecutor candidly conceded that he had his own
“reservations” about the strength of the State’s case, and the Circuit Court characterized
the case as “an uphill battle” for the prosecution.
       35
          Opening statements began mid-morning on Wednesday, January 7, 2015 and
closing statements concluded mid-afternoon the next day, at which time the jury began
deliberating. The deliberations continued into Friday, January 9, until the jury returned its
verdict mid-afternoon that day.

                                              44
evidence established that Mr. Harris and the victims did not know each other, raising the

question as to how he would know that there would be cash and Oxycodone at the

apartment.

       The only evidence linking Mr. Harris to the scene of the crime was the fingerprint

match made by the latent print examiner. In Reed v. State, 283 Md. 374, 380 (1978), this

Court observed that fingerprint identification was among the category of scientific

techniques that were “so broadly and generally accepted in the scientific community that a

trial court may take judicial notice of its reliability.” An acknowledgement of the general

reliability of fingerprint evidence does not mean that we presume its infallibility. While

the latent print examiner’s testimony raises questions about how Mr. Harris’ fingerprints

ended up on the pill bottles, it is hardly conclusive that he participated in the armed robbery.

       In any event, we need not be convinced that Mr. Harris is innocent. Rather, to find

the error harmless, we must be convinced that it did not influence the verdict beyond a

reasonable doubt. The viability of Mr. Harris’ defense hinged on his credibility, especially

with respect to his alibi. As indicated earlier, a missing witness instruction can invite a

jury to draw an unreliable inference from the imagined testimony of an absent witness. We

conclude that the decision to give a missing witness instruction in this case was not

harmless beyond a reasonable doubt. See Dansbury, 193 Md. App. at 750-55 (missing

witness instruction not harmless error in light of importance of defendant’s credibility to

defense).




                                              45
C.     Post-Arrest Silence and Harmless Error

       The Court of Special Appeals held that the Circuit Court erred in admitting

Detective Gaskins’ statement that Mr. Harris had requested an attorney during their

interview. However, the intermediate appellate court found that error to be harmless as it

felt able to declare beyond a reasonable doubt that the Circuit Court’s error did not affect

the verdict. The Court of Special Appeals reasoned that there was only a brief reference

during the detective’s testimony to Mr. Harris’ request for counsel, that the request was not

mentioned during the remainder of the trial, that neither counsel referred to it in argument,

and that the fingerprint testimony was “compelling evidence” of Mr. Harris’ guilt.

       We agree with the Court of Special Appeals that it was an error to allow Detective

Gaskins to testify that Mr. Harris had requested counsel during a custodial interview. See

Lupfer v. State, 420 Md. 111, 119-20 (2011). In light of the fact that we are reversing the

convictions in this case for other reasons, we need not decide whether that error was

harmless. We trust that, at any retrial that may occur after remand of the case to the Circuit

Court, the prosecution will not elicit testimony from Detective Gaskins concerning Mr.

Harris’ invocation of his right to counsel.


                                              IV

                                        Conclusion

       For the reasons set forth above, we hold that the Circuit Court should not have given

a missing witness instruction adverse to the defendant concerning the absence of Ms. Fallin

as a witness.



                                              46
JUDGMENT OF THE COURT OF SPECIAL
APPEALS REVERSED. CASE REMANDED TO
THAT COURT FOR ENTRY OF AN ORDER
VACATING PETITIONER’S CONVICTIONS AND
REMANDING THE CASE TO THE CIRCUIT
COURT OF BALTIMORE CITY FOR A NEW
TRIAL. COSTS TO BE PAID BY RESPONDENT.




 47
Circuit Court for Baltimore City
Case Nos.: 114069007, 114069008
           114069009, 114069010
Argued: October 11, 2017
                                          IN THE COURT OF APPEALS

                                                 OF MARYLAND

                                                       No. 9

                                               September Term, 2017



                                                 JERRY HARRIS

                                                         v.

                                             STATE OF MARYLAND



                                                Barbera, C.J.
                                                Greene
                                                Adkins
                                                McDonald
                                                Watts
                                                Hotten
                                                Getty,

                                                       JJ.


                                   Concurring and Dissenting Opinion by Adkins, J.


                                                Filed: April 12, 2018
       Most respectfully, I dissent from the Majority’s holding that the trial court abused

its discretion by giving the missing witness instruction. It is well settled that we review

the trial court’s decision to grant a jury instruction under an abuse of discretion standard.

Atkins v. State, 421 Md. 434, 446 (2011). In describing this standard, we have said:

              Judicial discretion is a composite of many things, among which
              are conclusions drawn from objective criteria; it means a sound
              judgment exercised with regard to what is right under the
              circumstances and without doing so arbitrarily or capriciously.
              Where the decision or order of the trial court is a matter of
              discretion it will not be disturbed on review except on a clear
              showing of abuse of discretion, that is, discretion manifestly
              unreasonable, or exercised on untenable grounds, or for
              untenable reasons.

Id. at 447 (cleaned up). See also Robinson v. State, 315 Md. 309, 318–19 (1989) (provided

that there is a “sufficient foundation of facts” to support the inference, “it will ordinarily

be within the discretion of the trial judge to grant or refuse a missing witness instruction”).

       The trial court here exercised its discretion to give the missing witness instruction

to the jury on the articulated basis that Ms. Fallin was Mr. Harris’s mother. It has been

said many times, and in many ways, that there is no stronger human bond than that between

a parent and child.1 This common-sense wisdom, in large part, explains why the trial judge


       1
        See, e.g., Andrew Solomon, Far From the Tree: Parents, Children and the Search
for Identity 6 (2012) (“The parental predisposition to love prevails in the most harrowing
of circumstances.”); see also S. Austin Allibone, Prose Quotations From Socrates to
Macaulay 482 (1880) (“‘[A] mother’s love endures through all . . . .’ Washington Irving”);
Henry Ward Beecher, The Sermons of Henry Ward Beecher in Plymouth Church, Brooklyn
58 (1872) (“There is no friendship, no love, like that of the parent for the child.”); James.
E. Faust, Second Couns. in the First Presidency, Dear are the Sheep that Have Wandered,
Sermon before the April 2003 General Conference of The Church of Jesus Christ of Latter-
Day Saints (Apr. 6, 2003) (transcript available at https://perma.cc/44BW-WNBZ) (“The
depth of the love of parents for their children cannot be measured. It is like no other
acted well within her discretion in giving the missing witness instruction to the jury.

Indeed, we observed in Christensen v. State, 274 Md. 133, 134–35 (1975), that the missing

witness inference is commonly applicable between family members.

       The party seeking application of the missing witness instruction must show that

“‘the missing witness was peculiarly within the adversary’s power to produce by showing

either that the witness is physically available only to the opponent or that the witness has

the type of relationship with the opposing party that pragmatically renders his testimony

unavailable to the opposing party.’” Bereano v. State Ethics Comm’n, 403 Md. 716, 742

(2008) (quoting Chicago Coll. of Osteopathic Med. v. George A. Fuller Co., 719 F.2d 1335,

1353 (7th Cir. 1983)). One element of this showing is a relationship of “interest or

affection.” Woodland v. State, 62 Md. App. 503, 510, cert. denied, 304 Md. 96 (1985).

       Here, the trial judge had more than the naked parental status to support her

instruction. Mr. Harris lived with his mother from November 2013 until January 2014

without paying rent; in 2008 or 2009 he gave his mother $75,000 from a workers’

compensation settlement and had given her money at other times. She was absent the day

the defense presented its case, even though defense counsel had told the jury she would

offer an alibi. Mr. Harris testified that he had been at his mother’s home on January 16,

2014, the night of the robbery. All of these facts support the trial judge’s discretionary

decision to grant the missing witness instruction.




relationship. It exceeds concern for life itself. The love of a parent for a child is continuous
and transcends heartbreak and disappointment.”).

                                                   2
       The Majority discounts the closeness and strength of this parental relationship,

citing Ms. Fallin’s consent to the police searching her home. In doing so, I submit, the

Majority improperly invades the province of the trial judge. A reasonable trial judge could

certainly conclude that Ms. Fallin gave her consent for reasons other than disinterest in her

son’s welfare—such as fear of what the police would do if she refused. We should not

reverse that decision based on our view of why she gave her consent.

       In holding that the trial court erred in giving the missing witness instruction the

Majority relies in large part on “developments in constitutional law, changes in the rules

of evidence and discovery, and questions concerning the accuracy of the adverse inference

promoted by the missing witness rule . . . .” Maj. Slip Op. at 16. To be sure, the

constitutional implications, and the policy concerns reflected in the abandonment of the

rule in other states are fair reasons to question the wisdom of the missing witness rule. I

do not disagree with these points, and maybe, eventually jettison of the rule will prove to

be the correct course.

       But the Majority does not abandon the missing witness rule—it only cabins the rule

to “the rare criminal case in which a missing witness instruction adverse to a defendant

may be appropriate . . . .” Maj. Slip Op. at 43. In my view, if such a case exists, this is it.

The parental bond, living arrangement, and prior financial dealings together with the

opening statement promising Ms. Fallin as an alibi witness, combine to create a

circumstance that more than justified the trial court’s discretionary decision.

       The Majority’s rationale and holding leaves litigants, lawyers and trial judges

without appropriate guidance from this Court. For example, it is difficult to know how


                                                  3
much weight the Majority gives to the trial court’s failure to announce in full detail all of

its reasons for its decision to give the instruction. Further, I am not persuaded that imposing

a strict requirement that the trial court announce all of its reasons for giving this or any

instruction is wise. Such a policy invites error by our trial judges, who are without the

luxury of deliberative written decisions in the midst of trial.

       I also disagree with the Majority’s statement that the justification for the missing

witness rule is “questionable” because trial lawyers prefer to try a “lean” case—particularly

as applied here. Maj. Slip Op. at 21. In this trial, defense counsel promised the jury that

Ms. Fallin would testify that Mr. Harris was with her the entire night of the crime. Surely,

defense counsel did not scrap Ms. Fallin’s testimony merely because it was cumulative, or

the jury was fatigued. Nor is it likely that, after promising the jury Ms. Fallin would

provide an alibi, he abdicated her testimony because of an eleventh-hour decision that her

demeanor was poor.

       Christensen fails to bolster the Majority’s position. The Majority is simply wrong

in stating that “the Circuit Court did not follow the ‘preferred procedure’ set forth in

Christensen.” Maj. Slip Op. at 35. That case enunciated a “preferred procedure” for use

of the missing witness instruction, directing that the party opposing the instruction be

afforded the opportunity to either call the “designated witness or demonstrat[e] to the court

by argument or proof the reason for the failure to call.” Christensen, 274 Md. at 135 & n.1

(quoting State v. Clawans, 183 A.2d 77, 82 (N.J. 1962)). Under the Christensen procedure,

the party seeking the instruction should bring the request to the court and opposing counsel

at the close of opposing counsel’s case, outside of the presence of the jury. Id. at 135 n.1.


                                                  4
Christensen does not require pretrial notice. Here, the prosecutor asked for the missing

witness instruction shortly after the close of the defense case during the normal time for

court and counsel to discuss jury instructions. Indeed, it would have been difficult for the

prosecutor to ask for the instruction any earlier—when defense counsel had indicated at

the close of the previous day’s proceedings that Ms. Fallin was present and ready to testify.

       Certainly the defense had the opportunity to “demonstrat[e] to the court by

argument,” id., the reason for the failure to call Ms. Fallin. Defense counsel argued clearly

against the missing witness instruction, but never offered a plausible reason for Ms. Fallin’s

absence that day:

              [Defense Counsel]: Well, it says, your Honor, that if a witness
              was peculiarly within the power of the State or the defendant
              to produce but was not called as a witness. The State never
              requested a subpoena for Ms. Fallin.

              The Court: No, it’s by the State or the defendant.

              [Defense Counsel]: Right. I didn’t call to request a subpoena
              for her. I just—you know there’s multiple reasons why she’s
              not here, none of which are pertinent to the issue.

              The Court: Okay. Okay. If a witness could have given
              important testimony in issue with this case—and I imagine an
              alibi would be considered important testimony—and if the
              witness was peculiarly in the power of the defendant to
              produce—which she was, it’s his mother—but was not called
              as a witness by the defendant, and the absence of that witness
              was not sufficiently accounted for or explained—which it was
              not—then you may decide that—I mean, how is this not
              applicable?

              [Defense Counsel]: Because it’s not peculiarly within his
              power. He’s in jail. He doesn’t have the power to do
              anything—



                                                 5
               The Court: Right. You are acting as his agent, [Defense
               Counsel]

               [Defense Counsel]: True.

               The Court: Okay. So you had the ability to either bring her
               here or subpoena her here as an alibi witness. The objection
               is overruled. 3.29 missing witness instruction is being read.

(Emphasis added).

       The reasons for Ms. Fallin’s absence may have been unrelated to the trial. But

defense counsel did not offer any explanation for her absence, even when given plenty of

leeway from the judge to offer a plausible reason for the same. I find no violation of

Christensen.

                        Post-Arrest Silence and Harmless Error

       There is another, unrelated, reason for reversal based on the police officer’s

testimony about Mr. Harris’s post-arrest silence and the defendant’s giving a false address

to the police. An accused’s pre- and post-arrest silences are inadmissible under Maryland

evidentiary law2 as substantive evidence of guilt. See Weitzel v. State, 384 Md. 451, 461

(2004) (pre-arrest silence); Kosh v. State, 382 Md. 218, 233–34 (2004) (post-arrest

silence).3


       2
         Although the use of an accused’s silence presents issues under the United States
Constitution and the Maryland Declaration of Rights, Maryland courts primarily address
these issues through Maryland’s Rules of Evidence. Only if the evidence is “proper as a
matter of Maryland evidentiary law,” through Maryland Rules 5-401 and 5-402, does a
court address whether the evidence is constitutionally permissible. See Dupree v. State,
352 Md. 314, 323–24 (1998); see also State v. Raithel, 285 Md. 478, 484 (1979).
       3
        There are some narrow exceptions. For example, an accused’s silence may be
admissible through “opening the door.” As we explained in Grier v. State, 351 Md. 241,

                                                6
       I agree with the Majority that it was an error to allow Detective Gaskins to testify

that Mr. Harris had requested counsel during a custodial interview. See Lupfer v. State,

420 Md. 111, 124–25 (2011).          Without a knowing and voluntary waiver of his

constitutional rights, his responses to interrogation were not admissible. Hughes v. State,

346 Md. 80, 87 (1997).

       The Majority elects not to decide whether the error was harmless. I take this second

step and examine the record for such purpose. The State used Gaskins’s testimony as part

of its case in chief. The prosecutor established that Gaskins had sought a warrant for Mr.

Harris’s arrest after learning that the print examiners had matched Mr. Harris’s fingerprints

to the prints found on the prescription bottles. Then the prosecutor asked Gaskins whether

he “attempt[ed] to interview Mr. Harris” and “[w]hat, if anything, occurred during that

interview[.]” Gaskins testified that Mr. Harris had “provided us with a false address,

denied any involvement with the robbery, and then . . . he requested an attorney.”4 That

request is inextricably linked with the notion that Gaskins believed Mr. Harris to be guilty.

Putting Mr. Harris’s request for an attorney before the jury, regardless of his claim of

innocence, left the inference of guilt “dangling for the jury to grab hold.” Dupree v. State,


260 (1998), “otherwise irrelevant evidence may be admitted when the opposing party has
‘opened the door’ to such evidence.” In United States v. Robinson, 485 U.S. 25, 32–34
(1988), the Supreme Court concluded that a prosecutor may be permitted to offer a “fair
response” when defense counsel claimed that the government had unfairly prevented the
defendant from telling his side of the story.
       4
         The Majority observes that Mr. Harris provided his former address, Maj. Slip Op.
at 7, and Mr. Harris testified that it was the one on his driver’s license. There is no
information in the record whatsoever that explains why Detective Gaskins thought it was
a false address.

                                                 7
352 Md. 314, 333 (1998). The jury may well have reasoned that if Mr. Harris really was

innocent, he would have been willing to talk to the police to clear his name.

       I agree with the Majority that “the viability of Mr. Harris’s defense hinged on his

credibility . . . .” Maj. Slip Op. at 45. During deliberations, the jury requested “the

addresses for wife, mother, and what was on his driver’s license.” This request suggests

that they were weighing whether Gaskins’s testimony that Mr. Harris had given a false

address was indeed accurate, and thus Mr. Harris’s credibility. See Porter v. State, 455

Md. 220, 253–54 (2017); Hunter v. State, 397 Md. 580, 597 (2007). It is quite possible

that Gaskins’s testimony was intentionally introduced to shore up the State’s case while

undermining the value of any testimony Mr. Harris might offer. In Kosh, 382 Md. at 234,

we concluded that an improper mid-trial instruction notifying the jury that the defendant

had kept silent “effectively impeached” defense witnesses before they testified. Here, the

State effectively impeached Mr. Harris’s testimony when it introduced his silence to law

enforcement before he testified.

       In Coleman v. State, 434 Md. 320, 345 (2013), when discussing the prejudicial

effect of defense counsel’s failure to object to police testimony about the defendant’s

silence, this Court stated that “because the improper admission of evidence of post-

Miranda [v. Arizona, 384 U.S. 436 (1966)] silence ‘is so egregious and so inherently

prejudicial, reversal is the norm, rather than the exception.’” (quoting Alston v. Garrison,

720 F.2d 812, 817 (4th Cir. 1983)). In Younie v. State, 272 Md. 233, 248 (1974), we

explained that “[t]he harmless error rule, as it pertains to the [F]ifth and [S]ixth

Amendments, has been and should be carefully circumscribed . . . .” This is because:


                                                8
              Continued expansion of the harmless error rule will merely
              encourage prosecutors to attempt to get such testimony in,
              since they know that, if they have a strong case, such testimony
              will not be considered to be reversible error, yet if they have a
              weak case, they will use such testimony to buttress the case to
              gain a conviction and then hope that the issue is not raised on
              appeal.

Id. (quoting People v. Jablonski, 195 N.W.2d 777, 780 (Mich. Ct. App. 1972)).

       To be sure, a single reference to a defendant’s invocation of his Fifth Amendment

rights is not always prejudicial error. But the State should not be permitted to introduce

inadmissible and prejudicial evidence—even once—without risking a reversal if the

circumstances warrant it. As the Majority observed, the evidence in this case made it a

close call. See Maj. Slip. Op. at 43–45. I conclude that admitting this testimony was not

harmless beyond a reasonable doubt. See Dorsey v. State, 276 Md. 638, 659 (1976).

                                      CONCLUSION

       I concur in the judgment vacating Mr. Harris’s convictions and remanding for a new

trial—because the reference to his request for an attorney was not harmless error. I would

hold that the trial court acted within its discretion in issuing the missing witness instruction

under the circumstances of this case.




                                                   9
