DANSBURY v. STATE

ersons not called and the reasons for the conclusion that they have superior knowledge of the facts. This would accord the party accused of nonproduction the opportunity of either calling the designated witness or demonstrating to the court by argument or proof the reason for the failure to call. Depending upon the particular circumstances thus disclosed, the trial court may determine that the failure to call the witness raises no inference, or an unfavorable one, and hence whether any reference in the summation or a charge is warranted."

The trial judge has discretion to grant or deny the instruction "when the facts would support the inference." Robinson, 315 Md. at 319 n. 7, 554 A.2d 395. Conversely, there is "no discretion to grant the instruction where the facts do not support the inference." Id. See Patterson v. State, 356 Md. 677, 688, 741 A.2d 1119 (1999) ("[A] missing evidence instruction generally need not be given; the failure to give such an instruction is neither error nor an abuse of discretion."). As this Court recently said, "the court is under no obligation to give an instruction on the matter. It may do so, and in certain circumstances perhaps it should do so, but . . . failure to do so is not error or an abuse of discretion." Keyes, 191 Md.App. at 546, 992 A.2d 519.

In Robinson, 315 Md. 309, 554 A.2d 395, the defendant was charged with automobile theft. He did not call as a witness a person whose identity was known only to him, and who allegedly would have exonerated the defendant. Id. at 311, 554 A.2d 395. On appeal, the defendant argued that the trial court erred in propounding a missing witness instruction, because it was likely that the witness would have invoked his privilege against self-incrimination. Id. at 312, 554 A.2d 395. The Court recognized that a "privileged witness" need not "always be called in order to avoid the unfavorable inference." Id. at 316, 554 A.2d 395. Rut, the Court reasoned that. because there was no evidence of the witness's existence or involvement in the crime, other than from the defendant, the trial court did not err in regard to the instruction. Id. at 317, 554 A.2d 395. Based on the circumstances, the jury could infer that the defendant did not call the witness because his testimony would have been unfavorable.

In reaching its conclusion, the Court said, id. at 318, 554 A.2d 395:

Even had there been no instruction concerning the availability of this inference, we think it likely that among the first questions posed in the deliberation of this case would have been, "Why didn't the defendant produce Alvin Johnson?" Only if, as a matter of law, the unfavorable inference could not have been drawn by the jurors would the trial judge have been authorized to prohibit the prosecutor from posing that same question in argument. And, only if the circumstances were such that the trial judge should have prohibited the argument would we be likely to reverse because the instruction was given. 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.[]

Even if the court does not propound a missing witness instruction, a party may be permitted, in closing argument, to argue the adverse inference to the jury. Davis v. State, 333 Md. 27, 52, 633 A.2d 867 (1993). See Garrison v. State, 88 Md.App. 475, 483, 594 A.2d 1264 (1991), cert. denied, 325 Md. 249, 600 A.2d 418 (1992). Generally, in a close case, a judge may opt to deny the instruction, in favor of closing argument, because "a statement or instruction by the trial judge carries with it the imprimatur of a judge learned in the law, and therefore usually has more force and effect than if merely presented by counsel." Hardison v. State, 226 Md. 53, 62, 172 A.2d 407 (1961). The Court of Appeals stated in Lowry v. State, 363 Md. 357, 375, 768 A.2d 688 (2001) (quoting Davis, 333 Md. at 52, 633 A.2d 867):

"Where a party raises the missing witness rule during closing argument, its use is just that — an argument. . . . Furthermore, the opposing side also has an opportunity to refute the argument and counter with reasons why the inference is inappropriate.

In contrast to the argument context is the trial judge's instruction to the jury. In the latter 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 judge has discretion to deny a missing witness instruction, leaving the matter to closing arguments, even when the facts would support the inference."

In this case, we do not consider the failure to give a missing witness instruction. Rather, we consider the court's decision to propound such an instruction. Bereano v. State Ethics Comm'n, 403 Md. 716, 944 A.2d 538 (2008), is instructive in assessing the propriety of the instruction.

Bereano, an "experienced lobbyist," agreed to provide consulting and lobbying services to Mercer Venture, Inc. ("Mercer"), based on a contingency fee. Id. at 723-24, 944 A.2d 538. The agreement's terms were included in "a letter from Bereano to Mike Traina of Mercer," which Traina signed. Id. at 724, 944 A.2d 538. The State Ethics Commission subsequently "initiated a complaint" against Bereano for violation of Maryland Code (1984, 2004 Repl.Vol.), § 15-713(1) of the State Government Article, which prohibits a "regulated lobbyist" from entering into contingency fee arrangements for lobbying agreements. Id. at 727, 730, 944 A.2d 538. At the merits hearing, Bereano did not call Traina as a witness. Id. at 738-39, 944 A.2d 538. In the Commission's Final Decision and Order, it stated, id. at 739, 944 A.2d 538:

"At the hearing Respondent testified that the language in the fee agreement related to 1% of the first year receivables' was added to the agreement at Mr. Traina's request and that Mr. Traina had sent him the language. . . . Mr. Traina was on the Respondent's witness list submitted to the Commission as part of the pre-hearing requirement pursuant to our regulations. . . . Because Mr. Traina did not appear and testify, we make the inference pursuant to the `missing witness rule' that his testimony would not have supported Respondent's testimony particularly in view of Respondent's incongruous testimony."

On appeal, Bereano argued that the Commission should not have "infer[red] that his failure to call Traina as a witness indicate[d] that Traina's testimony would [have been] unfavorable." Id. at 738, 944 A.2d 538. The Court agreed and reversed. Id. at 756, 944 A.2d 538. It reiterated, id. at 742, 944 A.2d 538:

Before a missing witness inference may be drawn, it must be demonstrated 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." Chi. Coll. of Osteopathic Med. v. George A. Fuller Co., 719 F.2d 1335, 1353 (7th Cir. 1983).

The Court observed that there was "no contention . . . that Traina was not physically available to both parties. Therefore, the issue turns on whether Traina was demonstrated to have the type of relationship with Bereano that would render Traina unavailable to the Commission's staff counsel as a practical matter." Id. The Court concluded that the Commission (in the role of fact-finder) made no finding that "the relationship between Bereano and Traina created a bias on the part of Traina in favor of Bereano." Id. at 743, 944 A.2d 538.

Of import here, the Bereano Court said, id. at 744, 944 A.2d 538:

"What is meant by `equal availability' in this context is not merely that a witness is subject to compulsory process, and thus available in a descriptive sense, but that he is of equal avail to both parties in the sense that he is not presumptively interested in the outcome." Tyler v. White, 811 F.2d 1204, 1207 (8th Cir. 1987). This is a difficult showing to make. See Hayes v. State, 57 Md.App. 489, 499, 470 A.2d 1301, 1306 (1984) (noting the "stringent requirement that the witness be peculiarly within the control of the party"). The mere possibility that a witness personally may favor one side over the other does not make that witness peculiarly unavailable to the other side. See Woodland v. State, 62 Md.App. 503, 510, 490 A.2d 286, 290 (1985) ("The inference to be drawn from the failure to call a witness will arise only if the relationship between the defendant and the witness is one of interest or affection."); United States v. Knox, 68 F.3d 990, 1001 (7th Cir. 1995) (holding that the potential for bias is not enough to make a witness practically unavailable and noting that "[e]ven government informants are not peculiarly within the government's control if the defendant can subpoena them as witnesses").

There is no suggestion in this record, much less a finding by the Commission, that Traina was "presumptively interested in the outcome."

In reaching its conclusion to reverse, the Bereano Court distinguished Robinson, supra, 315 Md. 309, 554 A.2d 395, in which the Court of Appeals concluded that the trial judge did not abuse his discretion in giving the instruction. The Bereano Court pointed to several distinctions between Bereano and Robinson, 403 Md. at 749, 944 A.2d 538:

First, unlike in the present case, the defendant in Robinson was given an opportunity to argue or explain the absence of the witness in an effort to forestall the announced intent to rely on the missing witness rule. Id. The defendant argued that he lived in a neighborhood where one was subject to bodily harm for identifying a criminal perpetrator. Id. Moreover, he claimed that Alvin had moved since the defendant had been in contact with him last. Robinson, 315 Md. at 320, 554 A.2d at 400. In the present case, there was no meaningful discussion of Traina's absence until the missing witness inference was invoked in the Commission's written decision. Unlike in the present case, Alvin was not physically available to both parties in Robinson. Until he was on the witness stand and the trial judge signed an order charging him with contempt, the defendant in Robinson refused even to give Alvin's last name. Robinson, 315 Md. at 314, 554 A.2d at 397. The prosecution had no opportunity to confirm the existence of Alvin, much less the opportunity to interview him. In the present case, Traina voluntarily submitted documents and met with staff counsel.

Based on the record in the case sub judice, as well as the cases discussed above, we agree with appellant that the court abused its discretion when propounded a missing witness instruction. We explain.

First, there was no finding by the trial court that the persons who allegedly witnessed appellant and Ms. M. together at the homes of appellant's aunt and mother were "peculiarly available" to appellant. As appellant points out, his aunt and his mother were both outside the courtroom during the trial, and therefore the State could have called them just as readily as appellant. And, of import here, despite the fact that the persons in issue are relatives or friends of a party, "[t]he mere possibility that a witness personally may favor one side over the other does not make that witness peculiarly unavailable to the other side." Bereano, 403 Md. at 744, 944 A.2d 538; see Hayes v. State, 57 Md.App. 489, 501, 470 A.2d 1301 (1984) (concluding that the witness who was a brother-in-law of the defendant was not "peculiarly available" to the defendant because "[a] witness will not necessarily testify favorably on behalf of his sister's husband"); Bing Fa Yuen v. State, 43 Md.App. 109, 111-12, 403 A.2d 819 (1979) (finding witness equally available despite the fact that witness refused to speak with defense counsel and was, at the time of trial, in a federal witness protection program); see also Harkins v. Perini, 419 F.2d 468, 471 (6th Cir. 1969) (holding that no unfavorable inference should have been permitted against the government where the government offered to submit a police officer for cross-examination at a hearing and the opposing party's attorney declined); Jenkins v. Bierschenk, 333 F.2d 421, 425 (8th Cir. 1964) (holding that the defendant's son was equally available to both parties in the litigation) Repecki v. Home Depot USA 942 F.Supp. 126, 129 (E.D.N.Y. 1996) (finding that a companion of the plaintiff was equally available to both parties); D.S. Magazines, Inc. v. Warner Publisher Servs. Inc., 640 F.Supp. 1194, 1201 (S.D.N.Y. 1986) (holding that the absence of a witness who could have been called by either party in a contract interpretation case did not justify the drawing of an adverse inference); see also In re Williams, 190 B.R. 728, 734 (D.R.I. 1996) ("The existence of an attorneyclient relationship alone does not imply that the attorneys were clearly favorably disposed to the positions of their past or present clients.") (citations omitted); Williams v. Morgan, 180 So.2d 11, 14-15 (La.Ct.App. 1965) (holding that the plaintiffs broker was equally available to both parties); State of Missouri v. Neil, 869 S.W.2d 734, 740 (1994) (concluding that the trial court did not abuse its discretion in permitting the state to argue an adverse inference in regard to the defendant's failure to call his mother with respect to his alibi defense; based on her relationship to the defendant, she was not equally available to the state).

Second, even if, arguendo, appellant's mother is regarded as "peculiarly available" to appellant, based solely on her status as appellant's mother, the sweep of the jury instruction was far broader than just appellant's mother. In addition to appellant's mother, the court included "a number of [appellant's] relatives and friends. . . ." As to the relatives and friends, the status of their relationships, without more, did not reveal that they were peculiarly available to appellant.

Third, the court's missing witness instruction, which was not initially requested by the State, was not balanced or even handed. The court singled out that appellant did not call his mother and other relatives and friends. Yet, Mr. Webb, the victim's boyfriend and a key witness, had testified that, on the night in question, he called the victim's aunt in an effort to locate the victim. The court never pointed to the State's failure to call the victim's aunt.

Fourth, it was not clear that any of the witnesses necessarily remembered any facts of relevance with respect to events that took place a decade before the trial. We also note that the encounter between the witnesses and Ms. M. was brief, according to appellant, and some of the witnesses were children at the time. It is entirely plausible that memories had faded about an alleged visit in 1997 by Ms. M., yet the court made neither an inquiry nor a finding in this regard. As the Court said in Christensen, 274 Md. at 135 n. 1, 333 A.2d 45, the "better practice" would have been for the court to afford appellant, "the party accused of nonproduction," with the opportunity of "demonstrating to the court by argument or proof the reason for the failure to call." Appellant argued the point, but no further inquiry was made by the court. See Thomas v. Owens, 28 Md.App. 442, 453, 346 A.2d 662 (1975) ("[W]hen it is shown why the witness was not called upon to testify and the reasons for not calling him are reasonable and proper, no inference that his testimony would be unfavorable is permitted.") (Citation and quotations omitted).

Having concluded that the court abused its discretion, we must consider whether the error is reversible or, instead, harmless beyond a reasonable doubt. See Alston v. State, 414 Md. 92, 107-08, 994 A.2d 896 (2010); Lancaster v. State, 410 Md. 352, 369, 978 A.2d 717 (2009); State v. Blackwell, 408 Md. 677, 698, 971 A.2d 296 (2009); Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665 (1976).

Disputing the State's contention that the instruction "had no effect on the verdict under the circumstances of [this] case," because the evidence of appellant's guilt was "overwhelming," appellant argues:

[G]iven that Mr. Dansbury and Ms. [M.] were the only witnesses to testify about the interaction between them, the jury necessarily had to assess the credibility of the alleged defendant and the alleged victim in this case. . . . The fact that the jury demonstrated its concerns about the credibility of Ms. [M.'s] testimony by acquitting Mr. Dansbury on all theft, robbery, and handgun charges despite Ms. [M.] directly testifying that the Defendant stole it from her (6/10/08 T.181 ("Q: What happened to your money? A: The guy took it. He took it.")) shows that the jury had doubts about the State's version of what occurred that night. In light of the closeness of the case, the missing witness inference undoubtedly had the potential to shape the jury's evaluation of Defendant's testimony and sway the direction of the verdict.

Appellant also contends that "the physical evidence was not conclusive for the State. . . ." He points to the following:

1) DNA evidence taken from Ms. [M.] on the night in question suggested a possible match with a second unidentified person; 2) Ms. [M.] did not identify Mr. Dansbury as the person who raped her in the photo array shown to her; 3) Mr. Dansbury testified that he knew Ms. [M.], had talked to her on the phone on several occasions, and she came to his house in November 1997 and engaged in consensual sex with him in his bedroom; 4) Ms. [M.] had a boyfriend at the time, and thus would have been reluctant to disclose that she was carrying on a relationship with Mr. Dansbury, a fifteen-year-old boy in 1997; 5) the State provided no corroboration that Ms. [M.] left from her aunt's house instead of Mr. Dansbury's house the night she was allegedly raped; and 6) the proximity of Mr. Dansbury's house to Ms. [M.'s] boyfriend's house enabled Ms. [M.] to walk the 1.5 miles between those locations on the night in question. Thus, the evidence supporting the Defendant was significant.

In Bellamy v. State, 403 Md. 308, 332-33, 941 A.2d 1107 (2008), the Court reiterated the scope of harmless error review:

In Dorsey v. State, 276 Md. 638 [ 350 A.2d 665] (1976), [ 276 Md. 638] 350 A.2d 665 (1976), we adopted the test for harmless error announced by the Supreme Court in Chapman v. State, 386 U.S. 18, 23 [ 87 S.Ct. 824, 17 L.Ed.2d 705] (1967). As adopted in Dorsey, the harmless error rule is:

When an appellant, in a criminal case, establishes error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed "harmless" and a reversal is mandated. Such reviewing court must thus be satisfied that there is no reasonable possibility that the evidence complained of — whether erroneously admitted or excluded — may have contributed to the rendition of the guilty verdict.

Dorsey, 276 Md. at 659, 350 A.2d at 678.

In performing a harmless error analysis, we are not to find facts or weigh evidence. Instead, "what evidence to believe, what weight to be given it, and what facts flow from that evidence are for the jury . . . to determine." Dykes v. State, 319 Md. 206, 224, 571 A.2d 1251, 1260-61 (1990). "`Once it has been determined that error was committed, reversal is required unless the error did not influence the verdict; the error is harmless only if it did not play any role in the jury's verdict. The reviewing court must exclude that possibility beyond a reasonable doubt.'" Spain v. State, 386 Md. 145, 175, 872 A.2d 25, 43 (2005) (Bell, C.J., dissenting) (quoting Ware v. State, 360 Md. 650, 716-17, 759 A.2d 764, 799 (2000)) (Bell, C.J., dissenting). "`To say that an error did not contribute to the verdict is, rather, to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed by the record.'" United States v. O'Keefe, 128 F.3d 885, 894 (5th Cir. 1997) (quoting Yates v. Evatt, 500 U.S. 391, 403, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432 (1991)). The "harmless error rule . . . has been and should be carefully circumscribed." Younie v. State, 272 Md. 233, 248, 322 A.2d 211, 219 (1974).

To be sure, "[h]armless error review is the standard of review most favorable to the defendant short of an automatic reversal." Bellamy, 403 Md. at 333, 941 A.2d 1107. But, we are mindful that Maryland's appellate courts have upheld criminal convictions, notwithstanding error committed by the trial court, when the evidence of guilt was so "overwhelming" as to render the court's error harmless beyond a reasonable doubt. See, e.g., Rubin v. State, 325 Md. 552, 578, 602 A.2d 677 (1992); Burral v. State, 118 Md.App. 288, 298, 702 A.2d 781 (1997), affd on other grounds, 352 Md. 707, 724 A.2d 65 (1999), cert. denied, 528 U.S. 832, 120 S.Ct. 89, 145 L.Ed.2d 75 (1999). Hayes, supra, 57 Md.App. 489, 470 A.2d 1301, provides guidance. In that case, Ted Hickman and Jay Connelly burglarized Lucia Midkiffs home. Id. at 491-92, 470 A.2d 1301. About a month later, Midkiff identified some of those items at an antique shop that the defendant owned. Id. at 492, 470 A.2d 1301. The defendant was then arrested. Id. At trial, Hickman testified that "the proceeds of the burglary were put in a trash can and moved to Paul Bentley's garage, from which location, Bentley was going to sell the merchandise." Id. According to Bentley, Hayes went to Bentley's garage and purchased the stolen items. Id. Bentley told the jury: "`In respect to Mrs. Midkiffs burglary, [Hayes] said . . . as far as I'm concerned, it's yours. I don't know where it comes from. I really don't care. . . .'" Id.

Hayes testified in his own defense. He claimed that he was driven to Bentley's residence by Joseph Giordano, his brother-in-law, and "had no reason to believe they were stolen property." Id. But, Hayes did not call Giordano to the witness stand. Id. Over defense counsel's objection, the court gave a missing witness instruction, although the State had not requested one. Id. at 493-94, 470 A.2d 1301. Thereafter, the jury convicted Hayes of theft. Id. at 491, 470 A.2d 1301.

On appeal, this Court, through Judge Bell, found that the trial court erred in giving the missing witness instruction. Id. at 495, 501, 470 A.2d 1301. The Court held, in part, that Giordano was not peculiarly within the defendant's control. Id. at 495, 470 A.2d 1301. And, of import here, the Court rejected any claim that the court's error was harmless. Id. at 501, 470 A.2d 1301. It reasoned, id. at 501-02, 470 A.2d 1301:

First, in this case, the main issue before the jury was who to believe — the State's witnesses, including Bentley, who claimed Hayes knew the property had been stolen, or Hayes, who testified that he had no reason to suspect that the property had been stolen, and that he believed he was engaging in a legitimate business transaction. As this Court noted in Christensen [v. State, 21 Md.App. 428, 437, 320 A.2d 276 (1974), rev'd on other grounds, 274 Md. 133, 333 A.2d 45 (1975)]: In a case determined by little more than which of two persons is to be believed possible inferences, whether naturally or legally raised, become crucial.

Since Giordano's testimony could well have reinforced the credibility of Hayes, the "highlighting" by the court of the inference that Giordano would testify unfavorably was crucial and prejudicial. Secondly, the giving of the instruction by the court in and of itself unfairly emphasizes the fact that Hayes did not call a particular witness. A reasonable person, upon hearing the instruction, would most likely give credence to it and infer that the missing witness' testimony would be unfavorable. Thirdly, since the instruction was couched in very general terms and no factual predicate was laid upon which the jury could intelligently decide whether to apply the rule, the instruction could have tended to mislead the jury. In light of the above, we cannot find that the error was harmless beyond a reasonable doubt.

In this case, Dansbury put his credibility in issue when he testified in his own behalf and offered his version of what transpired. As indicated, he claimed that he and Ms. M. first went to his aunt's house, and then engaged in consensual sex at his mother's house. He also recounted that an argument unfolded when his mother found Ms. M. in bed with appellant. The court's missing witness instruction expressly highlighted that appellant did not call his mother and other relatives and friends. Although the State's evidence of appellant's guilt was quite strong, it was not so overwhelming as to convince us, beyond a reasonable doubt, that the missing witness instruction did not influence the jury's verdict. As in Hayes, a reasonable juror may have inferred that Dansbury decided not to call witnesses to the events because their testimony would be unfavorable. In turn, this might have led a reasonable juror to discredit appellant's entire account.

For example, in addition to appellant's testimony, DNA evidence taken from Ms. M. contained a minor allele, suggesting a possible match with a second unidentified person; the State did not clearly explain the significance or insignificance of a minor allele; and Ms. M. did not initially identify Mr. Dansbury as the person who raped her in the photo array shown to her in 2007. And, as appellant notes, the jury did not accept all of Ms. M.'s testimony, as it acquitted him of the handgun and theft related charges.

In sum, in the context of this case, in which Mr. Dansbury and Ms. M. were the only witnesses to the contact between them, and appellant's credibility was central to his defense, we cannot say that the missing witness instruction had no effect on the jury's evaluation of appellant's credibility, on which his defense rested.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED. CASE REMANDED TO THAT COURT FOR A NEW TRIAL. COSTS TO BE PAID BY MAYOR AND CITY COUNCIL OF BALTIMORE.