Harris v. State
182 A.3d 821
Md.2018Background
- Jerry Harris was tried for a Baltimore home-invasion robbery; victims did not identify him. The State’s primary evidence linking Harris to the scene was latent fingerprints on pill bottles matching his left-hand prints.
- Harris testified he was at his mother Barbara Fallin’s home the night of the robbery; defense counsel told the jury Fallin would be an alibi witness, but Fallin did not testify at trial.
- After both sides rested, the trial judge (on the court’s suggestion) permitted the State to request — and then gave — a missing witness jury instruction permitting the jury to infer Fallin’s absence meant her testimony would have been unfavorable to Harris.
- A detective testified (over defense objection) that Harris gave a false address, denied involvement, and requested an attorney during a post-arrest interview; that remark was later deemed erroneous by the Court of Special Appeals but held harmless there.
- The jury convicted Harris on several counts; the Court of Special Appeals affirmed. The Maryland Court of Appeals granted certiorari and reversed Harris’s convictions because the missing witness instruction was improper under the circumstances and not harmless.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Harris) | Held |
|---|---|---|---|
| Whether the trial court properly gave a missing witness instruction adverse to the defendant based on his failure to call his mother | The State argued Fallin was peculiarly available to Harris (mother/expected alibi), so jury could infer absence meant unfavorable testimony | Harris argued the instruction shifted burden to defendant, violated constitutional protections (presumption of innocence, no obligation to call witnesses), and the court failed to follow required procedure | Court held giving the missing witness instruction here was error; such instructions that invite adverse inferences against defendants should rarely, if ever, be given and were improper on these facts |
| Whether the trial court followed proper procedure before giving a missing witness instruction | The State relied on the court’s invitation and the family relationship as sufficient; offered no prior notice | Harris argued the preferred procedure (notice at close of opposing case; opportunity to call witness or explain absence) was not followed | Court held the preferred Christensen procedure and notice requirements were not satisfied; court initiated the idea and relied mainly on familial relation |
| Whether a missing witness inference can be given when the witness is equally accessible to State | The State implied Fallin was practically unavailable to the State and peculiarly available to Harris | Harris stressed the State could have subpoenaed Fallin and did not attempt to do so | Court held mere familial relationship and absence of Fallin’s testimony did not establish peculiar availability; State had same opportunity to subpoena |
| Whether the detective’s testimony that Harris requested counsel was harmless error | The State argued the remark was brief and harmless in light of fingerprint evidence | Harris argued the testimony improperly introduced post-arrest silence and invocation of counsel, prejudicing his credibility | Court found admission of that testimony was error; because convictions were reversed on other grounds, the Court did not resolve harmlessness but instructed prosecution not to elicit that at retrial |
Key Cases Cited
- Graves v. United States, 150 U.S. 118 (U.S. 1893) (statement of the historic missing witness doctrine)
- Griffin v. California, 380 U.S. 609 (U.S. 1965) (prohibition on commenting on defendant’s failure to testify under Fifth Amendment)
- In re Winship, 397 U.S. 358 (U.S. 1970) (State bears burden to prove guilt beyond reasonable doubt)
- Christensen v. State, 274 Md. 133 (Md. 1975) (preferred procedure and limits on missing-witness inference; sometimes requires no-inference instruction)
- Robinson v. State, 315 Md. 309 (Md. 1989) (permitting missing-witness instruction in close cases but noting discretion and prerequisites)
- Davis v. State, 333 Md. 27 (Md. 1993) (distinguishing prosecutorial argument from judicial instruction; courts must be especially cautious before giving a missing-witness instruction)
- Bereano v. State Ethics Commission, 403 Md. 716 (Md. 2008) (admonition to invoke the doctrine prudently and to give notice before relying on it)