*1 685A.2d 805 Roy Monroe ROBERTSON v. Maryland.
STATE 60, Sept. Term, No. 1996. Special Appeals Maryland. Court of
Dec. *3 Braudes, E. (Stephen R. Defender Michael Assistant Public Harris, Defender, brief), Baltimore, Appel- Public lant. (J. Attorney Joseph K. Assistant Clancy,
Thomas General Baltimore, Curran, Jr., General, F. Attorney Jerry *4 Westminster, Barnes, Attorney County, for State’s Carroll brief), for Appellee. WILNER*, JJ., and HARRELL and Submitted before (retired), Specially Assigned. S. GETTY JAMES * Participated hearing case an active and of this while decision Court; Appeals, being appointed the Court he member of this after to Appeals participated specially assigned Special the Court was adoption opinion. in the of this
HARRELL, Judge. Appellant, Roy Robertson, Monroe by jury convicted in the Circuit Court for County Carroll of first-degree murder and use of a handgun the commission of a felony. The court sentenced appellant imprisonment, life without the possibility of parole, for the murder conviction and a consecu- tive fifteen year imprisonment term of handgun convic- tion. Among appellant’s several points alleged error is the trial judge’s grant refusal to request for a specific jury instruction on an alibi defense. We conclude that there was sufficient evidence the record to compelled have granting appellant’s request for an alibi instruction. We further con- that, clude under the facts case, and circumstances of this trial judge’s failure to propound requested alibi instruc- tion, or one instructing otherwise the jury as to an alibi defense, constituted error. Accordingly, reversible we shall judgment reverse the of the circuit court.
ISSUES Among questions the six presented by appellant for our review following, is the which rephrased we have as follows:
Whether regarding an accused’s alibi that is by offered a prosecution witness in the form of statements accused, alone, made to him standing constitutes sufficient instruction, evidence to warrant an if request- ed.
Because our resolution of this question dispositive of this appeal, we need not consider appellant’s five other questions.1 Appellant’s appeal following: other contentions on are the I. Were certain appellant’s remarks made the trial court counsel in improper? front of the II. permitting Did the trial court investigating err in officer to opine appellant's veracity against about appellant? the evidence denying III. Did the trial appellant’s suppress court err in motion to police placed statements he made to an undercover officer in his cell? refusing IV. Did the trial compel police court err in two officers
who testified for the State to during disclose notes taken then- investigation?
FACTS body the February p.m., 12:20 approximately 18On fishing in a snow-covered Prodoehl was discovered of Charles Monocacy River in Carroll Dam on the near Starner’s area body five minutes examined the within County. A doctor who the had been victim discovery initially concluded its An investi- eighteen thirty hours. for approximately dead signs no that there were gation of crime scene indicated the revealed that report robbery. autopsy a or The struggle head, although in the no defen- twice Prodoehl had been shot Further, one of the body. on the were found sive wounds indicating that the gunpowder stippling, had victim’s wounds touching very or near the shooting was gun used in discharged. head when it was victim’s mur- suspects Three became immediate individuals lovers, wife, Gina, appellant her and two of der: victim’s murder, appellant At Douglas the time of Crouse. police investigated home. The living was in the Prodoehl appellant with years charging for almost two before murder appellant came against murder. Most of evidence Trooper George Forsythe he had with from conversations Staubitz, John Jr. murder, on appellant
Ten months after the was arrested County charges and incarcerated at the Carroll unrelated charges. on those From pending Detention Center trial George Forsythe, January Trooper 1993 to 5 December suspect, placed murder posing as an incarcerated time, in For- confided During appellant cell. this appellant’s having affair and that sythe that he had been an Gina and $100,000 policy planned splitting had a life insurance they Forsythe appellant life. intimated on Prodoehl’s When knows, Gina, if I “duped” by appellant replied, “[s]he had been will, time, go away long for a she too.” suspect police had V. officer testified that alternative After a test, 1) failing grant did err in a polygraph taken a mistrial, the trial court 2) refusing to admit the results of test? or incriminating appellant most statements For- made to sythe during came in which appellant, discussion using *6 self-reference, third-person rhetorical of in device recounted discussion, detail Prodoehl’s murder. this During appellant Forsythe told that weapon the murderer threw the murder Big into Creek a off of Pipe bridge from 140. Maryland Route Forsythe relayed police this information to the who conducted a search of the surrounding gun. creek and the area for the police gun bed, .32 deep discovered a caliber in the river within yet throwing distance of bridge. expert A firearms determined gun likely that the was more than not murder weapon.
In August was appellant sentenced on the unrelated charges Roxbury and to the transferred Correctional Institute in Hagerstown, Maryland. his Rox- During incarceration at bury, inmate, appellant friendly became with a fellow John Staubitz, Appellant Jr.2 went to in seeking help Staubitz setting a of chronology surrounding forth events the murder. months, Over the next several appellant also went to Staubitz legal for advice and in writing assistance letters about his case. in February appellant Sometime approached in highly Staubitz a anxious Appellant state. told Staubitz investigators that had gathered more evidence than he originally thought, might testify Gina now against him. Appellant help wanted Staubitz’s in filling the details his of earlier chronology. Appellant gave then a Staubitz descriptive detailed and account of the During murder. this events, recounting appellant told Staubitz or four three times that had he killed Charles Prodoehl.
During trial, appellant’s day fourteen it was the State’s theory that shot and for appellant portion killed Prodoehl a $100,000 life, life insurance on policy Prodoehl’s and so that he and relationship. According Gina could continue their the crime was committed at approximately 4:30 Staubitz, 2. John Jr. had a been state official before his for convictions office, conspiracy commit misconduct as as other well several offenses. contrast, theory the defense February on 17 p.m. lover, the actual Crouse, other Douglas Gina’s was that appeal, as he did state- asserts on Appellant perpetrator. trial, introduced at Sgt. which were Coppinger ments made occurred, allegedly day murder throughout the that the his job, primarily in innocuous activities: engaged he was errands, home, bowling alley. at a running that, during the trial, other evidence At the State introduced work deter- investigation, asked his boots appellant was if taken from the snow they imprints mine matched the boot however, to body. attempted, “pass Appellant near Prodoehl’s Appellant’s as his own. pair co-workers boots off” farm in a shed were later discovered hidden boots “similar and worked. These boots were appellant where scene, *7 imprints to boot found at the consistent” the appel- the One of for “slices” on the soles of boots. except soles his appellant slicing the lant’s co-workers observed spring. boots with a knife sometime that Thomas P. Sgt. the State also offered given had to appellant who recounted a statement Coppinger, statement, February appellant In that him on 23 approximately p.m. that arrived home at 1:45 claimed he prepar- to that Prodoehl was According appellant, around time join him. go fishing appellant Appellant to and invited to ing he Appellant stated that and declined the invitation. time, time left the house at the same approximately victim separate each went their being p.m.,” “no later than 3:00 residence, went way. leaving appellant After Prodoehl store, office, in post and then the K-Mart the Sheetz he with Prodoehl. so that could rendezvous Gina Westminster K-Mart, go but he did not Appellant met Mrs. Prodoehl Next, undergarments. appel- his he had soiled inside because underwear, home, stated that he returned discarded lant According in pants himself and his the shower. and cleaned statement, Mrs. Prodoehl home with appellant’s returned son, Carl, ate approximately p.m. Appellant 4:45 her however, bowling. Appellant, with them and then went dinner testify not in his own at trial. did defense evidence, At appellant the close all the made several requests to the court proposed jury for instructions. Among request those was a that the court propound Maryland Crimi- (Alibi). Jury nal Pattern Instruction Number 5:00 in- That struction reads as follows:
Evidence has been introduced that the defendant was not there was when committed. You should consider this with all along evidence other evidence this case. Thus, defendant, in order to convict the must State doubt, prove, a beyond reasonable that the crime was committed the defendant committed it. MPJI-Cr. 5:00 The court request. denied this In so court ruling, trial reasoned as follows:
I do not feel that is a proper instruction for this simply case I because have heard no witnesses take the stand [alibi] the Defense case. present[s] [Mr. Robertson] a theory the Defendant can offer an through statements that he made police to various officers who as testified for witnesses I State. don’t think that or the instruction the various cases which are referred to in the comment section antici- pate an being alibi defense made in the way you wish present that defense. There have been no alibi witnesses the Defense this case. Appellant subsequently first-degree convicted of murder and use of handgun a in the commission of felony. From *8 those a timely appeal convictions he noted to this Court.
ANALYSIS begin analysis We our of the sole issue that we need address a reiterating proposition Maryland settled law court, “it that is incumbent ... upon requested when a case, give criminal an on every instruction essential ques or point v. tion of law Bruce supported by evidence.” State, 87, 97, 145 428, (1958). Accord Smith 218 A.2d 433 Md. State, v. 175, 179, Pulley v. 196, (1985); 302 Md. 486 A.2d 198 State, 682, 686, Md.App. 621, (1978); Couser 38 382 A.2d 624
375
399,
(1977),
State,
485, 499,
406-07
v.
374 A.2d
Md.App.
36
denied,
852,
cert.
389,
99
125,
439 U.S.
Md.
383 A.2d
282
aff'd
(1978).
words,
In
158,
a defendant
An alibi is defense “[a] place in a than the scene relevant time of different [the] (6th Dictionary Black’s Law abridged 46 ed. involved....” (1985). Smith, 180, 1991); see Md. A.2d at 198 To 302 486 alibi, must time prove an “the cover whole have commit by any possibility might which the crime been State, 729, 581, Floyd v. 573, 109 A.2d 732 205 Md. ted....” (1954). every to establish process requires
Due State which the defen necessary fact to constitute the crime with beyond a agency, his criminal charged, including dant 364, Winship, In re 358, 397 U.S. S.Ct. reasonable doubt. State, v. (1970); 19, Davis 1068, 1073, 285 Md. L.Ed.2d Grady, v. 406, (1979); State 24-31, 276 Md. 400 A.2d 408-12 (1975). See 181-82, generally, R. 345 A.2d Law: Practice Jr., Maryland Criminal Moylan, Gilbert & C. (1983). and Procedure merely An defense serves § 45.3 crime, is, therefore, not an of the negate element such, As does not bear the affirmative defense. defendant on that issue. Robinson 20 Md.App. proof burden Robinson, any A.2d 268 we held in a that the accused has the burden reference instruction *9 376
to is improper. Judge Moylan, establish an alibi for writing Court, opined:
We think sound view to an an be that alibi is not defense, placing any upon affirmative burden a defendant beyond the one of attempting self-evident erode the proof point State’s it longer to a where no convinces the fact beyond alibi, finder a reasonable doubt. Proof of an like any testimony, other a simply defense is means of contro- Id. effort to verting the State’s establish criminal agency. 459, at 272. 316 A.2d at
Judge Moylan’s that it incorrect an pronunciation classify is alibi as an affirmative defense was soon adopted thereafter Grady, State v. 178, 184, the Court of Appeals 276 Md. 345 436, (1975). A.2d 439 State, later, in Pulley v. years
A few we held that an alibi court, instruction if given by must be requested, when sufficient was adduced evidence at trial raise the 38 issue. 688-91, 682, 621, Md.App. 382 A.2d recog- 624-26. This is nized as the rule prevailing throughout the United States. See generally, Criminal Procedure 4 Wharton’s 467 & n. 43 § (Torcía ed., Supp.) 13th ed. 1992 & 1994 and cases cited therein; 2 Federal Practice and Proce- A. Wright, Charles dure: Criminal 2d 482, (1992); Note, § at 689-91 Necessity of Alibi Instructions: The Court’s Unswaying Resolve to Protect Instruction, to an Alibi Right 33 How.L. 437 J. Defendant’s (1991). Pulley, accused’s alibi was corrobo- and, believed, rated if would have been sufficient to establish period alibi the entire which the during State contended that the been 688, crime had committed. Md.App. A.2d at Consequently, we held the accused was Id. separate 690-91, entitled to a instruction. 382 A.2d at 625. Pulley
The rule of embraced the Court of Appeals Smith v. Md. 486 A.2d The Smith court extended the Pulley, by stating: scope
Of ordinarily the cases which trial require court .the instruct jury concerning alibi when alibi issue *10 requested instruction by the evidence and the presented that defendant, hold overwhelming majority by the at testimony, that he was some uncorroborated defendant’s crime, generate is sufficient to of the other at time place the issue. (internal footnote 180-81, citations and A.2d at 198
Id. at omitted). that the defendant’s The Smith Court concluded the time during he in Texas flatly stating that was testimony, sufficient to Maryland, was in was that committed Id. A.2d at at warrant an alibi instruction. in on the tenet that holding, part, its premised
Court entirely merely disregarded not testimony may be accused’s contradictory there a or because was he is defendant because at 486 A.2d in the case. Id. evidence elsewhere (Fla.App.1980)). 381 So.2d (quoting Hudson in the instant for an instruction To furnish basis matter, entirely on the of a relied almost appellant witness, P. who testified Sgt. Coppinger, Thomas prosecution as own account of his activities follows: as to Mr. Robertson’s got committed] was he [day that on the the crime He said He and home to the Prodoehl residence---- off work drove home, and he arrived stops way on the home made no he forty-five. He said that when went approximately one residence, residence, in the and into the Mr. Prodoehl was going fishing.... that appeared be [he] time, he indicate Q. point anything At that did he ill? regard having day off work that because was taken ill, was feeling A. He did mention that he was—he I that note Mr. suffering symptoms, from flu-like did quite during a bit the interview. coughing Robertson ill, say he had left work because he was ... He did get said time to off. but he also it was normal he with Prodoehl Mr. Robertson said talked William fishing planning going he was indicated that [who] —and go along.... Mr. Robertson invited Mr. Robertson day. go fishing he did not wanna Mr. [sic.] indicated Robertson said Mr. Prodoehl loaded his fishing gear into his truck, Robertson, and Mr. himself left the residence to run some errands. That included going Store, to the Sheetz post office and K-Mart.
Q. Did he indicate to you, the course of that conversa- tion, going Sheetz Store for precisely what? I,
A. Cigarettes believe, I a Pepsi. [*] [*] sji [*] [*] [*] Q. Did he else, indicate that he went anywhere then, that afternoon?
A. Yes. He want to the K-Mart.... He said that he ... did there, meet Ms. Prodoehl but he did not go into the *11 store. Apparently, he had soiled his underclothing and was in, go unable to and he said he stayed, explained her, that to and then left as went into [she] the K-Mart.
Said he left the K-Mart lot parking and returned to the [victim’s residence which he also where he took a resided] shower, and words, then his “He threw his bloomers away and washed pants his in the shower.” He remained there at the Prodoehl residence until Mrs. Prodoehl arrived home at approximately four forty-five....
... I interjected then a question to Mr. Robertson if he knew what time Mr. Prodoehl residence, left the and Mr. Robertson responded that Mr. Prodoehl left the residence approximately one minute —one minute before —or min- one ute after Mr. Robertson left the residence.
Q. he what [D]id indicate time that was? A. He said it was definitely before three o’clockp.m. Smith, that, Appellant contends under the aforementioned testimony furnished sufficient evidence to generate an alibi bar, instruction. however, The case at is readily distinguish- able from Smith Pulley Robertson, himself, that Mr. did not offer any evidence of alibi either in the form of an alibi witness or with his own testimony. Instead, appellant prem- ised his alibi prosecution defense on a witness who testified as to exculpatory statements made to by him appellant. Fur- Pulley, Mr. in Smith and thermore, statements unlike the alibi required not were Sgt. Coppinger statements Robertson’s Attor- by the State’s of cross-examination gauntlet to run the matter of the instant circumstances Thus, the facts and ney. adduced the State evidence decide whether us to require evidence defense is sufficient accused’s alibi an supporting specific jury through the issue presenting warrant the court. propounded instruction authority Maryland any failed to uncover Our research sought guid- we Accordingly, particular issue. addressing this this directly on opined that have jurisdictions ance from other Hicks, States began with United inquiry Our question. Cir.1984). Hicks, (4th appealed defendants In F.2d 854 for the District Court States convictions in the United their robbery. Govern- for armed bank Maryland District of three Hicks aided and abetted trial was that theory at ment’s Accordingly, from the bank. them to and by driving others crime was scene of the presence of his proof arrested, Hicks claimed he element. When essential the crime occurred robbery of the when away from the site he particular, being with the other defendants. and denied of the crime with spent day he the entire claimed that street to obtain quick trip for a across the girlfriend, except girlfriend Hicks nor his Id. at Neither liquor. some however, case, During its at trial. Id. at 856-57. testified *12 exculpatory state- introduced the defendant’s Government exculpatory false allegedly These police. ments made the evidence of the by prosecution the as statements were offered of Id. at 857. guilt. consciousness defendant’s court, Winter, held that the writing for the Judge Chief prove intended to prosecution, the while by evidence adduced a false Hicks made by showing of guilt consciousness that statement, jury the the factual placed before exculpatory of the from the site away of whether Hicks was question a sufficient Consequently, occurred. robbery when the crime instruction, Hicks to an alibi was laid and entitled foundation in Hicks contended that request. his The Government upon solely based a defense instruction request could not defendant by offered the not for its truth for prosecution on evidence but falsity. its Id. at 857. The Hicks Court dismissed this by argument stating: true, jury post
If the found that Hicks’ arrest statement was or if it raised a regarding presence reasonable doubt of robbery, jury the scene the then the was bound to find Hicks not Thus guilty. government’s may own evidence provided well have effective alibi defense.
[*] [*] [*] [*] [*] [*] that agree While we evidence would not have been Hicks, if by only admissible offered we do not think that ... if by may evidence admissible offered a defendant serve as govern- the foundation for a defense instruction.... [T]he sought prove ment the statement it introduced to be By untrue rather than true. evidence what the offering statement, contends was a government exculpatory false the truth that government put statement in issue. Id. added). (emphasis
Two
reasoning
other federal circuits have followed the
Fourth
in
year
Circuit
Hicks. One
after Hicks was
decided,
Eighth
though
Circuit held that even
the defen-
witness,
government
dant’s mother was a
her
sufficient to warrant an
instruction.
United States v.
(1985).
Webster,
Recently,
F.2d
the Ninth Circuit
held that a requested
given
alibi instruction had to be
even
it
though
supporting
the sole evidence
was introduced
Hairston,
Government. United States v.
64 F.3d
authority
We find the aforementioned
accompanying
and its
addition,
reasoning persuasive.
we
passing
note
appears
rule that
crystallizing
be
the federal courts of
instance,
appeal
ways.
can cut both
For
Plemons
(1990),
Ga.App.
Furthermore,
jurisprudence
the federal courts’
on the
on
sufficiency
required
generate
of evidence
an instruction
defense, in general,
Mary
theories of the
is consistent with
generally
land’s. The federal courts
hold that
defendant
“[a]
theory
judge
jury
is entitled to have the
instruct the
that it
provided
supported by
defense
law and has some
Hairston,
(quot
foundation in the evidence.”
Moreover,
fact that an
defense is not
affirmative
the
defendant,
to the notion that the
support
defense lends farther
himself,
to generate
not introduce alibi evidence
order
need
Grady,
v.
State
In
for an instruction on the issue.
the basis
Court,
analyzing contemporaneous Supreme
supra,
while
of the Fourteenth
addressing
impact
Court decisions
on the
burden
prosecution’s
Due Process Clause
Amendment’s
following proclamation:
of
made the
proof,
Supreme
of these
Court
teachings
conclude that
We
of
and
proof
to the issue of who has the burden
apply
cases
an accused relies on an alibi as a
that burden is when
what
Constitution,
sum,
as well as
under the Federal
defense.
all
prove
of
the burden is on the State
Maryland,
the law
beyond
so
a
alleged
of
crime and
do
elements
doubt; hence,
have to
the defendant does not
reasonable
alibi,
proof.
a minimal standard of
establish his
not even
a
like
other
any
of alibi should come into
case
“Evidence
jury
to the
for consider
evidence and must be submitted
issue of
of
the evidence as a whole on the
ation
whether
guilt beyond
the defendant’s
a reasonable
presence proves
(5th Cir.1971),
Smith,
572,
doubt.” Smith v.
454 F.2d
578
denied,
885,
99,
141
cert.
34 L.Ed.2d
409 U.S.
S.Ct.
(1972).
Grady, 276 Md.
Indeed,
claiming
in a
in which an accused was
case
involuntary,
Appeals
the Court of
noted
his confession was
requirements
generating
of evidence
a
sufficiency
that the
upon whether
jury
may
depending
instruction
differ
requested
Hof,
an accused is an affirmative one.
the defense asserted
(1995).
337 Md.
As
Wilner
Court,
that, if a
case is
prima
‘bottom line’ is
“[t]he
fade
law,
generated
particular point
on a
the defendant
to a
instruction on that point.” Wright
entitled
616, 620,
Md.App.
522 A.2d
read
When
clearly
stand for
together, Grady, Hof, Wright
propo
sition that
if the defendant does not bear the
burden
issue,
persuasion
upon timely request,
on an
he is entitled to a
instruction on that issue if there is sufficient
specific
support
*15
record,
it in
regardless
actually places
for
the
of which side
on
jury.
the evidence
that issue before the
Finally,
any contrary
our research failed to uncover
authori
in cases where a
ty
timely requests
defendant
an alibi instruc
Fromal,
100,
tion. But see Commonwealth v.
Pa.Super.
392
117-22,
denied,
711, 720-22,
629,
app.
572 A.2d
527 Pa.
592
(1990) (where
A.2d 1297
presented
sole evidence
alibi was
by prosecution
pursue
and where defendant did not
issue or
instruction,
request
defendant was not entitled to alibi instruc
tions).
hold, therefore,
We
that when the sole evidence of an
accused’s alibi is adduced
the
by
government
criminal defen
nevertheless,
may,
dant
be entitled to an
instruction.
alibi
Having
may
determined that
appellant
rely
the
Sgt. Coppinger
support
request
statements of
to
for a
instruction,
specific jury
we must now determine whether
actually
those statements
furnished sufficient
for an
support
instruction,
alibi instruction. To furnish
for an
support
the evidence must
tend to
that
show
the defendant was
charged
elsewhere when the crime he is
with was committed.
alibi,
To
an
prove
testimony
“the
must cover the
time in
whole
by any possibility might
which the crime
commit
have been
581,
Floyd,
ted....”
Waddell we held defendant’s to to prior at home one and one-half two hours he was an alibi time of crime was insufficient to warrant asserted in the because other evidence record indicated that instruction crime. was close to the scene of the 65 the defendant’s home denied, cert. 606, 614, 865, (1985), A.2d 869 305 Md.App. A.2d Md. State, (1974),
Grady
Md.App.
In the case the State argues appellant’s time- police to the did not cover the sufficiently statements allegedly According frame which murder occurred. Mr. crime occurred appellant told Staubitz that the *16 Further, the p.m. argued 4:00 and 4:30 to prosecutor between jury allegedly p.m. the that the murder occurred around 4:30 State, According simply to the “there was no evidence indicat afternoon, where Prodoehl was around 4:30 in the the ing time period.” crucial record, however, of the indicates that the State’s
Our review hyper- contention is some appellate analysis and afflicted with in its brief that detailed bole. State contends “Robertson that, fishing.” 1:45 Prodoehl left p.m., go around to by Sgt. asked what time actuality, appellant, Coppinger when residence, left it reportedly responded Mr. Prodoehl the was Sgt. testified that definitely Coppinger before three o’clock. told him that he home 4:45 appellant approximately Prodoehl arrived. There was also documen- p.m. when Mrs. was 20.5 miles from that the Prodoehl residence tary evidence scene, twenty-eight minute drive. approximately in the record from Consequently, there was some evidence was not at the jury appellant which a could have inferred Accord- p.m., period.” scene at 4:30 the “crucial time murder as to was raised and should ingly, appellant’s an issue in jury to the form of an alibi presented have been instruction. to purpose jury
The main instruction is aid and jury clearly understanding considering the case guidance jury’s by for the deliberations testimony; provide directing legal principles apply attention to the their case; jury in the and to ensure that the govern and the facts just can at a fair and is informed of the law so that it arrive State, 44, 48, 650 verdict. Chambers v. 337 Md. A.2d jury Accurate instructions are also essential for safe guarding right a defendant’s to a fair trial. The court’s fairly adequately protect should an accused’s instructions by covering controlling issues of the case. It rights follows, therefore, that a criminal defendant is entitled to have presented jury relating theory to the instructions to a evidence, is support defense which there sufficient though impeached the evidence has been or is otherwise controverted evidence of the State.
It
not
function
judge weigh
is
of the trial
the evidence
and select some
in which
give
cases
the alibi instruction.
given
every
The instruction should be
case where
there
jury.
sufficient evidence to take the issue to the
Smith,
(quoting
Md.
386 right a defendant’s constitutional impinges upon
encroachment of jury, to the as the trier prefer trial. to leave jury to a We witnesses, of fact, evaluating credibility the task of of the accused’s de- testimony, adequacy and the weight of of fact to ascertain whether It is for the trier theory. fense weighed and as all other evidence testimony, considered case, guilt. doubt of an accused’s in a creates a reasonable 257, 263-64, 574, 322 A.2d Jackson v. Md.App. See (1974).4 defense, not an affirmative a an alibi is Because possibility jury that the instruction eliminates specific alibi respect on the defense with proof the burden of place will at 625. If Pulley, Md.App. at 382 A.2d issue. is a likelihood that the given, are not “there such instructions of persuasion jury will become confused about burden (citation omitted), Id., [,]....” 382 A.2d prov bears the burden of thereby assume that the defendant circum warranted the facts and ing his innocence. When case, alibi instructions reinforce particular stances of the jurisprudence of our criminal bur guiding principle beyond a reasonable always prove with the State den at the scene of the crime present that the defendant was doubt committed. asserts that at the time the State instructions, is an inherent risk that a such there Without against claim may simply weigh the defendant’s alibi preponderance on a mere of the evidence and convict State’s States, (D.C. 16, 19 v. United evidence. Henderson 619 A.2d 1992). wateiy sentimentalist —who re- "It was Mr. Justice Frankfurter —no history history liberty largely of has been the minded us that ‘The safeguards.’ history of the destruc- procedural And the observance add, largely history liberty, may has been the tion of one plausible- procedural safeguards in the face of of those relaxation frightening widely sounding governmental of a need to deal with claims Anthony society.” emotion-freighted good order of threats to the Amendment, Amsterdam, 58 Minn.L.Rev. Perspectives on the Fourth G.
387
applica
A
instruction that is otherwise
requested
of the case need not be
under the facts and circumstances
ble
instructions
fairly
it has
covered
the
given when
been
State, 95 Md.
by the court. Tirado v.
actually propounded
denied,
481,
536,
187, cert.
331 Md.
628 A.2d
App.
622 A.2d
bar,
propounded
In
at
the instructions
1067
the case
merely
trial
set forth the elements of the offense
judge
Pulley,
of
we held that the
proof.
and the State’s burden
general
regarding
trial court’s
instructions
State’s burden
cannot be deemed
proof
presumption
of
and the
of innocence
690,
A.2d
fairly
Md.App.
cover the issue of alibi. 38
382
Smith,
Appeals
at 625. In
the Court of
reasoned as follows:
majority
as well as a
of
Special Appeals,
Court
throughout
country,
cases
have held that when the
alibi,
generates
evidence
a criminal case
the issue of
requests
when the defendant
an instruction
ad
specifically
alibi,
dressed to the matter of
the defendant is entitled to a
instruction, and that the trial court’s
specific
general
concerning
prosecution’s
proof,
instructions
burden of
etc., are not deemed to
“fairly cover” the matter
alibi.
180,
....
We the instructions pounded by the circuit court the instant case did not encompass or obviate the need for an instruction embodying the defendant’s theory alibi.
Finally, the State has cited no Maryland precedent
holding that
jury
court’s failure to instruct a
on an
defense,
evidence,
supported by
accused’s alibi
when
con
stitutes harmless error.
In Pulley,
of the
witnesses,
believed,
defendant and other alibi
if
sufficiently
established an alibi for the
period during
entire
which the
instances,
allegedly
crime was
In such
committed.
we held
that the
grant
request
court’s refusal to
the defendant’s
for a
specific alibi instruction was
error.
Md.App.
reversible
688,
supports harmless court’s error was persuaded we are not a reasonable doubt. beyond FOR CAR- OF THE CIRCUIT COURT
JUDGMENTS A REVERSED; FOR CASE REMANDED ROLL COUNTY TRIAL; BE PAID BY CARROLL COUN- TO COSTS NEW TY. GETTY, dissenting. Judge, Specially Assigned,
JAMES S. *19 I dissent. Respectfully, court, when it is incumbent on the agree fully
I case, every jury to instruct the in a criminal requested by law the evidence. point supported or question essential Pulley is, hold, from clearly distinguishable I This case would 688-91, (1978), A.2d 621 which Md.App. rule correctly recognize being prevailing as the colleagues my to an instruction. relating States alibi throughout the United defense. He Pulley, testified his own the accused and his day on the of the murder accounted for his activities Pellucid- by corroborated two witnesses. testimony fully was evidence. generated was the ly, an alibi instruction judice the case sub completely foreign is Factually, produce any neither did he Pulley. Appellant testify, did not I that he was not testimony recognize from others. an alibi is not to mount a defense because required on the persuasion a burden placing affirmative defense however, If, accused made no effort whatever accused. (he state- exculpatory could have offered his an alibi generate I hold that the court’s Sgt. Coppinger), would through ment Pattern of Criminal precise language to include the failure (Alibi) error, is, if harmless. 5:00 Jury Instruction No. instruction states: pattern The not that the defendant was has been introduced Evidence You should consider the crime was committed. there when all other evidence this case. along this with evidence defendant, Thus, the State must in order to convict the doubt, com- that the crime was beyond a reasonable prove committed it. mitted and the defendant instructions, on the jury was instructed Elsewhere beyond a guilt of the accused prove State’s burden doubt; inno- presumed that the accused be reasonable cent; to remain silent. The instruc- right and that he has the whole, jury its tions, clearly impress upon taken as rendering a to consider all of the evidence before obligation they of evidence that failed to There is not a scintilla verdict. do so. Sgt. Coppinger detailing had present initial claim that he was not when the
appellant’s committed, separate by appel- and two admissions lant, officers, to undercover that he committed the given police murder, In the details of including the details thereof. crime, told his undercover cell mates where he had he gun, purportedly the murder into the river. A weapon thrown murder from the area weapon, was recovered described appellant. supple- it if court had preferable
Would have been the trial proof, mented the standard on burden of reason- instructions doubt, presumption by adding able of innocence *20 innocuous words of instruction No. 5:00: “Evidence was intro- that defendant not when crime was duced was there You along committed. should consider this evidence with other evidence in this case....”? answer to obvious that question is “Yes.” question appel-
Pertinent to this case is the whether the or right impinged, lant’s to a fair trial has been whether the jurors fully duty would have been more aware of their solemn if the instruction had proposed to consider all of the evidence court. I realistic answer is been included submit the “No.” difficult,
I it if that a defen- impossible, accept find not relying upon of an is an presents dant who no evidence alibi nothing His so-called more than an alibi defense. defense majority opinion, I understand the of counsel. As argument newly rich vying was that the other suitor his defense shooter. widow’s attention was the that there is some My colleagues suggest any learned time the defen- support position evidence the record a court must elsewhere when the crime occurred dant was true, If end requested. may instruction when we give an alibi there,” they being “I not as are yelling, with inmates up evidence, any other prison to their cells. Without escorted an untold given instruction will be because number attesting they can at trial heard produced inmates be present that he was not when the defendant’s fervent denial victim, fishing, was executed for a share of gone who had $10,000 policy.5 life insurance A.2d 817 Campbell
Randall JENKINS Madolyn Nellie JENKINS. Term, 117, Sept. 1996. No. Maryland. Special Appeals of Court of Dec. *21 est, (This indeed is
5. Hoc perquam scripta ita est. quidem durum sed lex hard, law.) very but such is the written