Thompson v. State
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Warren Thompson v. State of Maryland, No. 110, September Term, 2005. JURY INSTRUCTIONS FLIGHT INSTRUCTIONS Petitioner sought review of a Court of Special Appea ls decision affirming the C ircuit Court for Baltimore City s determination that the evidence of flight in the case at bar was sufficient to support the giving of a flight instruction to the jury. Petitioner also presented the Co urt of Appeals with the issue of whether flight instructions given in criminal cases are per se improper. The Court of Appea ls determine d that it is not per se improper for a trial judge to instruct the jury on flight evidence. The Court concluded , however, that under the circumstances of the case sub judice, the trial judge abused his discretion in giving the flight instruction to the jury. Therefore, the Court of Appeals reversed the judgement of th e Court of Special Appeals. IN THE COURT OF APPEALS OF MARYLAND No. 110 September Term, 2005 WARREN THOMPSON v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Battaglia, J. Filed: June 20, 2006 The case sub judice presents us with the issue of whether a jury instruction on flight should ever be given in a criminal case. Although we determine that flight instructions are not per se improper, we conclude, nevertheless, that the trial judge abu sed his discre tion in the case at bar in p rovidin g a fligh t instructi on to th e jury. Facts On July 17, 2002, Noah Gottesman, William Beaver, and Bradley Kelly were walking back to their h otel nea r the Inn er Har bor in B altimore City after dinner . On the 1300 block of East Pratt Street, two men on bicycles approached th e trio. One o f the men said, I ll make this e asy. Put your wallets o n the grou nd. Me ssrs. Gottesm an, Beav er, and Ke lly did not stop. The would-be robber pulled a gun, and Messrs. Gottesman, Beaver, and Kelly ran as at least five shots were fired, one of which hit Mr. Gottesman in the right arm. At the end of the block, two men in a sports utility vehicle stopped and offered to take Messrs. Gottes man, B eaver, a nd Ke lly to the ho spital, an offer w hich w as acce pted. Police officers met them at the h ospital. After interviewing M essrs. Gottesman, Beaver, and Kelly, the officers broadcasted that they were looking for an African-American male with corn rows, who was approxim ately twenty-five year s old, wear ing a bagg y white t-shirt an d jeans or jean s horts on a bicycle a ccom panied by anoth er perso n. Detective Frank Mundy arrived at the location of the shooting and saw Warren Thompson, the Petitioner, who fit the broadcast description, on a bicycle. Detective Mundy ran toward him, identified himself as a po lice officer, and yelled for him to stop. M r. Thompson saw Detective Mundy and continued to pedal faster away from him. Detective Mundy lost sight of him, but within five minutes, other police officers caught Mr. Thompson within a mile. When he was apprehended, the police recovered a significant quantity o f cocaine on Mr. Thompson. Mr. Thompson was charged with three counts each of attempted f irst degree murder, attempted second degree murder, first degree assault, second degree assault, use of a handgun in the c omm issio n of a fel ony or crime of violence, reckless endangerment, and one count each of wear ing, carrying, or tran sporting a h andgun illegal posses sion of a re gulated firearm, possession of a contro lled dangerous substance with intent to manufacture and distribute, and possession of a controlled dangerous substance At a pretrial hearin g held on J uly 15, 2003 in the Circuit Court for Baltimore City, Mr. Thompson argued that, due to some anomalies in the chain of custody of the cocaine recovered from him when he was arrested, the drugs, the results of the chemical analysis conducted by the police and any statements made by Mr. Thompson concerning the drugs should be suppressed. The State opposed Mr. Thompson s motion and asserted that the drugs were admissible, regardless of any issues in the chain of custody, because M r. Thompson made statements to the police acknowledging his possession of the drugs. The Circuit Court took the matter under advisement and two days later, immediately prior to the impaneling of the jury, ruled that the cocaine, the results of the chemical analysis, and those portions of Mr. T hompso n s statemen t to police rega rding his possession of the drugs were inadmissible. The court also dismissed the charges arising out of his possession of controlled 2 dange rous su bstanc es. During the trial, the prosecution called Messrs. Gottesman, Beaver, and Kelly, each of whom testified concerning the events on July 17, 2002 and identified Mr. Thompson as the shooter. The prosecution also called Baltimore City Detective Frank Mundy, who interviewed the victims and Mr. Thompson after his arrest. Detective Mundy testified that Mr. Thompson fled on his bicycle w hen De tective M undy appro ached an d identified h imself as the police. The prosecution also played a redacted version of a tape recording of Detective Mundy and Baltim ore City Dete ctive Mik e Debo rd s conve rsation with Mr. Thompson. The defense called De tective Deb ord, who testified con cerning M r. Gottesma n s failure to identify Mr. Thompson as the shooter after viewing a photo array. Mr. Thompson also called Mr. Joseph Harant, a criminalist with the Baltimore City Police Department Laboratory in the Trace A nalysis Unit, who testified that there w as no gunshot residu e on Mr. Tho mpson s hands . At the close of the case, inclu ded in the in structions giv en to the jury was the following instruction on flight: A person s flight immedia tely after the commission of a crime or after being accused of committing a crime is not enough by itself to establish gu ilt, but it is a fact that may be considered by you as evidenc e of guilt. Flight under these circumstances may be motivated by a variety of factors, some of which ar e fully consistent with innocence. You must first decide whether there is evidence of flight. If you decide there is evidence of flight, you must then decide whether the Defe ndant s fligh t shows co nsciousne ss of guilt. 3 On July 21, 2003, the jury acquitted Mr. Thompson of the counts of first degree assault and second degree assault relating to Messrs. Beaver and Kelly, but was unable to reach a verdict on the remaining counts of attempted murder, assault, use of a handgun in the commission of a crime of violence, reckless endangerment, wearing, carrying, or transporting a handgun, and illegal possession of a regulated firearm with respect to Messrs. Beaver and Kelly. The jury was unable to reach a verdict on any of the charges concerning Mr. Gottesman. The State elected to retry Mr. Th ompson only with resp ect to the charge s relating to Mr. Gottesman, which included one count of: attempted first degree murder, attempted second degree murder, first degree assault, second degree assault, reckless en dangerm ent, use of a handgun in the commission of a felony or crime of violence, wearing, carrying, or transporting a handgun, and possession of a regulated firearm after having been convicted of a disqualifying crime. As with the first trial, the tape recording of Mr. Tho mpson s statements to the police that he fled was played again for the jury and a transcript of the statement also was provided, without o bjection. Th e State also c alled Detec tive Mun dy to testify, which he did as follows: [THE STATE]: W here were you when you first saw the defenda nt? [DETECTIVE MUND Y]: I was in the 1100 block of East Pratt Street. [THE STATE]: Where was he? [DETECTIVE MUND Y]: He was on a bicycle heading I guess it would be westbound on the 1100 block of E ast Pratt Street. [THE STA TE] : If you could help us out, is that towards the Inner Harbor or aw ay from the Inner Ha rbor? 4 [DETECTIVE MUNDY]: It would be tow ards the Inner Harbo r. *** [THE STATE]: What did you personally do? [DETECTIVE MUND Y]: I attempted to approach the defenda nt. [THE STATE]: Okay. Did you walk toward him? [DETECTIVE MUND Y]: Well, I had to run up to him because he w as pe dalin g a bicycle awa y. [THE STATE]: Okay. Did you say, Stop, police ? [DETECTIVE MUNDY]: Well, what happened was, when I started running up towards him, he turned around and saw me, and he started to p edal awa y faster, and I did yell at that point to stop. [THE STATE]: Okay. Before he saw you I mean, before he started to pedal away, when you first approached him, did you have your gun drawn? [DETECTIVE M UNDY]: No. [THE STATE]: Did you say, Stop, police ? [DETECTIVE M UNDY]: No, I don t think I did. [THE STATE]: Okay. As he pedaled away, what did you do? [DETECTIVE M UNDY]: What, after he saw me? [THE STA TE]: Yes. [DETECTIVE MUNDY]: After he saw me and he pedaled awa y, I called it out to try to get him stopped. I did tell him at that point I was the police, to stop. *** [THE STATE]: Detective, before you saw the defendant fleeing on the bicycle, was he under arrest at that time? [DETECTIVE M UNDY]: No. [THE STAT E]: Okay. And how do you know tha t he heard you? [DEFE NSE C OUN SEL]: Objection , Your Hono r. THE COU RT: If you know ho w you know, or if you just assumed it, you can tell us that. Overruled. [DETECTIVE MUNDY]: Well, like I said, I ran towards. He saw me. He started pedaling faster away and I yelled, Stop, 5 police! I don t k now f or certa in that he heard m e, but . . . Mr. Thomp son did no t object to the admission of the evidence concerning his flight from police, although he did object to the form of the questions. During the bench conference preceding the jury instructions, the State requested a flight instruction and the following colloquy occurred: [THE STATE ]: The State would also ask for [Maryland Pattern Jury Instruction Criminal] 3:24,[1], which is flight of the defenda nt. [DEFENSE COU NSEL ]: I would like to be heard on that, Your Honor. THE COU RT: Sure. [DEFENSE COUNSEL ]: Your Honor, the previous motion suppressed drugs that allegedly were found on M r. Warren s person Mr. Thompson s person and in his statement, which was redacted from the jury, he says basically, I ran because I was dirty. That was redacted. Now, if you let this flight instruction in front of the jury, they re going to think that he ran because he committed the shooting, not perhaps the real reason: he ran because he was dirty. That was kept from the jury and I think this is misleadin g, given the facts that the ju ry actually did 1 Maryland Pattern Jury Instruction Criminal 3:24 provides: A person s flight [concealment] immediately after the commission of a crime, or after being accused of committing a crime, is not enou gh by itself to establish guilt, but it is a fact that may be c onside red by you a s evide nce of guilt. Flight [concea lment] under these circumstances may be motivated by a variety of factors, some of w hich are fully consistent w ith innocence. You must first decide whether there is evidence of flight [concealment]. If you decide there is evidence of flight [concealment], you then must decide whether this flight [concea lment] sho ws a con sciousness of guilt. 6 hear. THE COURT : Well, the instruction says, Flight under these circumstances may b e mo tivat ed by a variety of factors, some of which are fully consistent with innocence, or at least innocence of this crime. [DEFENSE COU NSE L]: I can t think, even though you are reading that in a light that s helpful to the defense, if any defense attorney has ever asked for a flight instruction, Your Honor. I definitely believe THE COU RT: N o, why would the defense ask for a flight instruction. No, I know, that s true. [DEFENSE COUNS EL]: No , I think the Sta te wants this because it s going to say he ran because he s the shooter and that s not THE COURT: Well, that is a permissible inference that they could draw from the evidence, but there s other inferences and that s explained right in there. I mean, frankly, it s a judgment call. I mean, you c ould have let go into evidence this other issue as an ex plan ation for w hy he ran a way. I mean, you balance the equities and you make a decision. [DEFENSE COUNSEL ]: I just said if this jury instruction is taken in the light of th e facts this jury has actually heard, it s misleading. THE COU RT: I don t think so. Overruled. The court gave th e fol low ing instru ction to the jury: A person s flight or concealment immediately after the commission of a crime or after being accused of committing a crime is not enou gh to establish guilt, but it is a fact that may be considered by you as eviden ce of guilt. Flight under thes e circumsta nces may be motivated by a variety of factors, some of which may be fully con sistent with innocence. You must first decide whether there s evidence of flight. If you decide there s evide nce of flight, you must then decide wheth er this flig ht show s a cons ciousn ess of g uilt. At the close of the instructions to the jury, the defense counsel objected to the giving of the flight instruction. 7 The jury in the second trial acquitted Mr. Thompson of attempted first degree murder and attempted s econd de gree murd er, but conv icted him, w ith respect to Mr. Gottesman, of first degree a ssault, secon d degree a ssault, reckless endange rment, use of a handgun in the commission of a felony or crime of violence, wearing, carrying, or transporting a handgun, and possession of a regulated firearm after having been convicted of a disqualifying crime. On May 14, 20 04, the cou rt denied Mr. Thompson s motion for a new trial and sentenced him to a f orty-ye ar term of imprisonment, with the first five years without eligibility for parole. On May 20, 20 04, Mr. T hompso n noted his appeal. The Court of Special Appeals, in a reported opinion, concluded that flight instructions given in criminal ca ses are not per se improper and have consiste ntly been uph eld by this Court. Thompson v. State, 164 Md. App. 652, 673 -74, 884 A.2d 6 78, 691 (2005). M oreover, the intermediate appellate court determined that the evide nce of flig ht was suf ficient to suppo rt the giv ing of th e instruc tion in th e prese nt case. On Novem ber 18, 200 5, Mr. Th ompson filed a petition for w rit of certiorari in th is Court and presented the following issues for our review: 1. Should this Court join the growing number of jurisdictions which have held that a flight instruction should never be given in a criminal case? 2. Assuming arguendo, that it is not improper per se to give a flight instruction, did the trial court err in instructing the jury that it could consider petitioner s flight as evidence of guilt where the court knew of a probable alternative explanation for the flight of which the jury was unaware? 8 On January 9, 2006, we granted the petition and issued the writ. Thomp son v. State , 390 Md. 500, 889 A.2d 418 (2006). We determine that flight instructions are not per se improper in criminal cases, but we conclude, however, that the trial judge abused his discretion in providing a flight instruction to the jury in the case at bar. Therefore, we reverse the judgment of the Court of Special Appeals. Discussion Mr. Thompson argues that there is no legitimate reason for instructing jurors that they can consider flight as evidence of gu ilt. He asserts that the other jury instructions concerning evidence adequately inform the jury that it may make inferences from circumstantial evidence. According to M r. Thompson, when a trial court gives a jury the flight instruction, that evidence is impermissibly emphasized by the court, which results in the prosecution receiving an unfair a dvantage. He furth er contend s that giving a flight instructio n is misleading because it improperly strengthens the questionable value of e vidence o f flight. Mr. Thomp son argue s that the fligh t instruction is inherently confusing for jurors because they would most likely not understand the distinction between evidence of guilt and not enough to establish guilt. Therefore, Mr. Thompson urges this Court to join with those jurisdicti ons tha t have d isallow ed the u se of fli ght instr uctions . Alte rnatively, Mr. Tho mpson a sserts that if this C ourt were to conclude that it is not per se improper to give a flight instruction, the trial court should not have given the instruction in the present case. He claims that because the parties and the court knew of 9 circumstances that did not support the inference that Mr. Thompson fled because he was guilty of the shooting, the trial court should not have encouraged that jury to make such an inference. Mr. Thompson argues that the evidence presented in the case sub judice does not support the giving of the flight instruction. Con vers ely, the State co ntends that th is Court sho uld reaffirm its acceptance of flight instructions under proper circumstan ces and rem ain in agree ment with the majority of other jurisdictions. Moreover, the State argues that the trial judge did not abuse his discretion by instructing the jury on flight. Fu rthermore, th e State note s that Thom pson did n ot object to the introduction of the evidence of his flight and therefore, the record contained sufficient evidence to support a flight instruction. Flight Instructions A re Not Per Se Improper Mr. Thompson urges this Court to overrule our p recedent approving jury instructions on flight and determine that such instructions are per se improper. We decline to do so. Maryland Rule 4-325 governs the giving of instru ction s to th e jury. Spe cific ally, Section (c) of the Rule addresses instructions that are requested by the parties; that section provides: (c) How given. The court may, and at the request of any party shall, instruct the jury as to the applicab le law and the extent to which the instruction s are bindin g. The co urt may give its instructions orally or, with the consent of the parties, in writing instead of orally. The court need not grant a requested instruction if the matter is f airly covered by instructions a ctually given. 10 Md. Rule 4-325. We have interpreted Rule 4-325 (c) as requir[ing] the trial court to give a requested instruction under the following circumstances: (1) the requested instruction is a correct statement o f the law; (2 ) the reques ted instruction is applicable under the facts of the case; and (3) the content of the requested instruction was not fairly covered elsewhere in the jury instruction actually given. M d. Rule 4-3 25 (c); Evans v. State, 333 M d. 660, 6 91, 637 A.2d 1 17, 132 , cert. denied, 513 U.S. 833, 115 S .Ct. 109, 130 L.Ed.2d 56 (1994). Ware v. State, 348 M d. 19, 58, 70 2 A.2d 6 99, 718 (1 997). On ly the first factor is independent of the facts of the case in which it is given, which results in it being determinative of whether the instruction on flight is per se improper . Therefo re, we sha ll examine whether the flight instruction as given in the case sub judice, which is identical to Maryland Pattern Jury Instruction Criminal 3:24, accurately reflects the law of the State of Marylan d. The instruction at issue in the present case provided: A person s flight or concealment immediately after the commission of a crime or after being accused of committing a crime is not enough to establish guilt, but it is a fact that may be consid ered by you as evid ence o f guilt . . . . Flight under thes e circumsta nces may be motivated by a variety of factors, some of which m ay be fully consiste nt with innocence. You must first decide whether there s evidence of flight. If you decide there s evide nce of flight, you must then decide wheth er this flig ht show s a cons ciousn ess of g uilt. We have consistently held that although [f]light by itself is not sufficient to establish the guilt of the d efend ant, Sorrell v. State , 315 Md. 22 4, 228, 554 A.2d 35 2, 353 (19 89), it is a factor that may be considered in determining guilt. Davis v. Sta te, 237 Md. 97, 105, 205 11 A.2d 254, 259 (1964). Moreover, we have noted that flight may be indicative of a consciousness of guilt b y the defe ndant. Westcoa t v. State, 231 Md. 364, 368, 190 A.2d 544, 546 (1963). Concomitantly, we have recognized that a defendant s flight may be motivated by reasons unconnected to the offense at issue in the case and that the determination as to the motivation for flight is pro perly entrusted to the jury. See Hu nt v. State, 312 Md. 494, 50809, 540 A.2d 1125, 1132 (1988). Thus, based on the foregoing cases, the instruc tion is substan tively accu rate with respec t to the law of the S tate of M aryland o n flight. We have consistently upheld the propri ety of flight instructions.2 See e.g., Sorrell 2 Our position has been consistent with the majority of both fed eral and Sta te jurisdictions, which allow flight instructions in appropriate circumstances where the evidence supports an inference of consci ousne ss of gu ilt. See e.g., United States v. Otero-Mendez, 273 F.3d 46, 54 n.3 (1 st Cir. 2001 ) (determinin g that the trial co urt s jury instruction on flight was not an abuse of discretion); United States v. Al-Sadawi, 432 F.3d 419, 424 (2d Cir. 2005) (holding that a flight instru ction is appro priate only if there exists sufficient evidence for the jury to infer con sciousness of guilt from the condu ct); United States v. Johnson, 199 F .3d 123, 128-29 (3d Cir. 1999) (noting that where there is evidence of the defen dant s flight, the giving of a flight instruc tion is entrusted to the soun d discretion o f the trial court); United States v. Obi, 239 F.3d 662, 665 (4th Cir. 2001) (concluding that flight instructions are proper under certa in circumsta nces); United States v. Myers, 550 F.2d 1036, 1049 (5th Cir. 1977) (announcing the generally accepted standard that a flight instruction is proper if the evidence supports four inferences: (1) from the defendant s behavior to flight; (2) from flight to conscio usness of guilt; (3) from co nsciousne ss of guilt to co nsciousne ss of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual gu ilt of the crime charged. ); United States v. Oliver, 397 F.3d 369, 376-77 (6th Cir. 2005) (holding that flight instructions are proper when there is evidence of flight and such evidence supports an inference of guilt); United States v. Clark, 45 F.3d 1247, 1250 (8th Cir. 1995) ( [W]e have squarely held that [flight] instructions may be given when warranted by the eviden ce ); United States v. Blanco, 392 F.3d 382, 395-96 (9th Cir. 2004) (determining that flight instructions are appropriate where the evid ence sup ports certain inferences); Tuttle v. State of Utah, 57 F.3d 879, 891 (10th Cir. 1995) (concluding that flight (contin ued...) 12 2 (...continued) instructions are proper when the evidence supports them); United States v. Wright, 392 F.3d 1269, 1277-78 (11th C ir. 2004 ) (same ). See also Ex Parte Clark, 728 So.2d 1126, 1135-37 (Ala. 1998) (observing that flight instru ctions are pro per whe n supporte d by the evide nce in the record); Merrill v. Sta te, 423 P.2d 686, 697 (Alaska 1967) ( [T]he trial court was warranted in giving a flight instruction and that the instruc tion was n ot erroneou s ); State v. Weible, 688 P.2d 1005, 1008 (Ariz. 1984) ( The amount of evidence requires to justify the giving of [a flight] instruction is well establish ed. A cou rt should be able to reasonably infer from the evidence that the defendant left the scene in a manner which obviously invites suspicion or announces g uilt. ); Russell v. Sta te, 398 S.W.2d 213, 215 (Ark. 1966) (holding that there is no merit in the appellants objection[] to [the] commonplace instruction[] concerning the inferen ce of guilt tha t may be draw n from the defenda nts flight ), disapproved on other grounds by Lakeside v. Oregon, 435 U.S. 333, 336 n.3, 98 S.Ct. 1091, 1093 n.3, 55 L.Ed.2d 319, 323 n.3 (1 978); People v. Bradford, 929 P.2d 544, 575 (Cal. 1997) ( [A] flight instruction is proper where the evidence shows that the defendant departed the crime scen e under c ircumsta nces sugg estin g tha t this mov eme nt was motivated by a consciousness of guilt ); State v. Wright, 502 A.2d 911, 916 (Conn. 1986) (stating that an instruction that did not include all the possible innocent explanations for his flight, was not erroneous and [t]he [trial] court w as not requ ired to enumerate all the possible innocent explanations offered by the defendant. The fact that the evidence might support an innocent explanation as well as an inferen ce of a co nsciousne ss of guilt does not make an instruction on flight erroneous. ); Thoma s v. State, 467 A.2d 954, 958 (Del. 1983) ( A flight instruction is proper where there is evidence of flight or concealment and the eviden ce reasona bly supports an inference that defendant fled because of a consciousness of guilt and a desire to avoid an accusation b ased thereon, or for som e other reason (emphasis in original)); Territory v. Leong Kun, 29 Haw. 90, 96 (1926) (holding that the flight instruction was proper); People v . Tramm ell, 389 N.E.2d 1, 3 (Ill. 1979) (determining that a flight instruction may be given under the following circumstances: (1) The defendant must leave the scene of the crime; (2) the defendant must know or have reason to know that a crime has been committed and that he is or may be suspected of committing that crime; and (3) the defendant s act of departure must be for the purpo se of evad ing arrest. ); State v. McIntyre, 381 So.2d 408, 411-12 (La. 1980) (concluding that a flight instruc tion proper ly informed the jury that it must either consider that evidence introduced is probative of the defendant s guilt or that it is not ); Comm. v. Toney, 433 N.E.2d 425, 432 (Mass. 1982) ( We think that a judge should instruction tha t jury (1) that they are not to conv ict a defend ant on the b asis of evidence of flight or concealment alone, . . . and (2) that they may, but need not, consider such evidence as one of the factors te nding to p rove the gu ilt of the defe ndant. ); People v. (contin ued...) 13 2 (...continued) Johnson, 430 N.W.2d 828, 829 (Mich. Ct. App. 1988) (holding that the flight instruction was proper where there was sufficient evidence to suppo rt it); State v. Mc Laughlin , 84 N.W.2d 664, 671-72, 674 (Minn 1 957) (stating that where sufficient e vidence o f flight is introduced, a trial court may give a qualified ins truction allow ing for the in ference o f guilt); Shaw v. State, 915 So.2d 442, 447 (Miss. 2005) ( [A] fligh t instruction is ap propriate only where the flight is unexplained and somehow probative of guilt or guilty knowle dge ); State v. Linco ln, 164 N.W.2d 470, 472 (Neb. 1969) (concluding that the flight instru ction was proper); Carter v. State, 121 P.3d 592, 599 (Nev. 20 05) ( It is prop er to instruct on flight whe re it is reasonab le to infer [gu ilt] from the evidenc e presented. ); State v. Littlefield , 876 A.2d 712, 716 (N.H. 2005) ( An instruction on flight is properly given if the jury could reasonably infer that the defendant s flight reflected consciousness of guilt, and flight requires neither the physical act of runn ing nor the r eaching o f a far-aw ay haven. ); State v. Mann, 625 A .2d 1102, 1107 (N.J. 1993) ( In those instances in which the trial court deems the evidence of flight admissible, it must instruct the jury carefully regarding the inferences the jury may draw from that e vidence. ); State v. Walton, 92 P.2d 157, 160 (N.M. 1939) (holding a flight instruction to be prop er where evidence supported it); People v. Robinson, 781 N.Y.S.2d 781, 782 (N.Y. A pp. Div. 2004) ( There was su fficient factual predicate to supp ort a jury instruction on the con cept of fligh t as evidenc e of cons ciousness o f guilt. ); State v. Pendleton, 622 S.E.2d 708, 710 (N.C. Ct. App. 2005) ( So long as there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged, the instruction is properly given. Th e fact that the re may be oth er reasona ble explanations for the def endant s conduct does no t render the instruction imprope r. ); State v. Carter, 195 N.W.567, 571 (N.D. 1923) ( The [flight] instruction correctly stated the law, and the evidence justified such instruc tion. ); State v. Sheppard, 842 N.E.2d 561, 569 (Ohio 2005) (determinin g that the ev idence w as sufficien t to support th e trial court s de cision to give flight instructio n); Jones v. Sta te, 128 P.3d 521, 539 (holding that the flight instruction was approp riate), reh g gra nted, 132 P.3d 1 (Okla. 20 06); Comm. v. Rios, 721 A.2d 1049, 1056-57 (Pa. 1998) (concluding that the evidence was sufficient to justify giving the flight instruction); State v. Mendoza, 889 A.2 d 153, 16 3 (R.I. 2005 ) ( [T]rial justice s decision to give a flight instruction simply depends upon whether a reasonable jury could infer consciousness of guilt from a totality of eviden ce produ ced at trial. ); State v. Burns, 979 S.W.2d 276, 289-90 (Tenn. 1998) (Evidenc e sufficien t to support a jury instruction on flight requires both a leaving the scene of the difficulty and a subsequent hiding out, evasion, or concealment in the community or a leaving of the commu nity for parts un known . ); State v. Bales, 675 P.2d 573, 575 (Utah 1983) (holding that there was sufficient evidence to warrant a flight instructio n); State v. Pelican, 632 A.2d 24, 28 (Vt. 1993) (providing that giving an (contin ued...) 14 v. State, 315 Md. 224, 554 A.2d 352 (1989); Young v. State, 234 Md. 125, 130, 198 A.2d 91, 94 (1964). As we have previously noted, We are cognizant of the importance of stare decisis and the resu lting certainty, defin ition, and dep endability it gives the law. Willey v. State, 328 Md. 126, 137, 613 A.2d 956, 961 (1992), quoting B & K Rentals v. Universal Leaf, 324 Md. 147, 158 , 596 A.2d 640, 645 (1991); Conteh v. Conteh, __ Md. __, __, __A.2d __, __ (2006) (discussing the application of stare decisis ); Livesay v. B altimore C ounty, 384 Md. 1, 15, 862 A.2d 33, 41 (2005) (observing that under stare decisis principles departure from th e rule sh ould be the extra ordina ry case ). In support of his position that the instruction should be held per se improper, Mr. Thompson argues, nonetheless, that in giving the flight instruction to the jury, the judg e is impermissibly emphasizing one piece of circumstantial evidence over the remainder of the prosecution s case. Moreover, he asserts that the general instructions on direct and circumstantial evidence and wh at constitutes evidence, which were given in this case, adequately address the issues delineated in the flight instruction.3 We di sagree . 2 (...continued) instruction on flight is fu lly consistent with the law of this state ); Clagett v. Comm., 472 S.E.2d 263, 271 (Va. 1996) ( Flight following the commission of a crime is evidence of guilt, and the jury may be so instructed. ); State v. Richey, 298 S.E.2d 879, 885 (W.Va. 1982) (concluding that giving o f flight instruc tion is not reve rsible error); State v. Winston, 355 N.W.2d 553, 556 (Wis. Ct. App. 1984) (holding that the admission of evidence and giving of a flight instruction are entrusted to the so und discretion of the trial court). 3 Maryland Pattern Jury Instructions Criminal 3:00 prov ides in pertine nt part: You may draw any reasonable inferences or conclusions from (contin ued...) 15 As Judge Learned Hand observed in United States v. Heitner, 149 F.2d 105, 107 (2d Cir. 1945), flight is a circumstance from which . . . everyone in daily life inevitab ly would infer (guilt), so that the instruction serves as a reminder to the jury that it would be inapprop riate to presume guilt from the act of flight. Similarly, the United States Court of Appea ls for the District of Columbia Circuit in Miller v. United States, 320 F.2d 767 (D.C. Cir. 1963), described the purpose of the instruction as, to caution against the dangers of drawing conclusions from superficial consideration of experience. Id. at 773 n.14. We agree and conclude that the instruction does not impermissibly emphasize the importance of evidence of flight; rathe r, it attempts to insure that the jury does not imbue evidence of flight with m ore we ight than it deserv es. The substance of the flight instruction is not adequately covered by the two other 3 (...continued) the evidence that you believe to be justified by common sense and your own experiences. Maryland Pattern Jury Instructions Criminal 3:01 provides: There are two types of evidence direct and circumstantial. The law makes n o distinction between the weigh t to be given to either direct or circumstantial evidence. No greater degree of certainty is required of circumstantial evidence than of direct evidence. In reaching a verdict, you should weigh all of the evidence presented, whether direct or circumstantial. You may not convict the defendant unless you find that the evidence, when considered as a whole, establishes guilt beyond a reasonab le doubt. 16 instructions highlighted by Mr. Thompson. The evidence ins truction, Maryland Pattern Jury Instructions Criminal 3:00, informs jurors that they may draw any reasonable inferences or conclusions from the evidence that [they] believe to be justified by common sense and [their] own experien ces; likewise, the instruction on circumstantial evidence, Maryland Pattern Jury Instructions 3.01, exp lains to the jury that c ircumstantia l evidence s hould be given the same weigh t as direc t eviden ce . Although these instructions address the issue of the jury s ability to draw inferences from the evid ence and the weigh t to be given to circumstantial evidence , they do not en compas s the entirety of the flight instruction s admonition to the jury that the defend ant s flig ht may not hav e bee n mo tivat ed by a consciousness of guilt, which might be the general conclusion of people as noted in Heitner, 149 F.2d at 107. Therefore, the general jury instructions regarding inferences from the evidence generally, and the appropriate weight to be given to circumstantial evidence in particular, are not adequate to render the flight instruction superfluous. Moreover, there are circumstances in which flight evidence and a flight instruction are necessary. In Sorrell, we concluded that the trial cou rt properly instructed the jury on the permissible inferences from the defendant s flight in the midst of his trial where the circumstances indicated that the absence was voluntary and an attempt to evade conviction. 315 Md. at 229-32, 554 A.2d at 354-55. W e further concluded that the state could discuss the defen dant s a bsence to avoid prejud ice to its c ase, and as such the cou rt could , in its discretion, give the instructio n. Id. at 229, 554 A.2d at 354 Flight evidence and a jury 17 instruction on flight also are particularly appropriate in circumstances where a defendant places his or her mental status at the time that the crime was committed in issue. In People v. Moon, 117 P.3d 591 (C al. 2005), Richard M oon was cha rged with the first degree m urders of his form er girlfrie nd and her mo ther. Id. at 596. At trial, the prosecution introduced evidence that M oon ob served police c onverg ing on h is motel room a nd fled . Id. at 598. When police a rrested h im, M oon co nfesse d to killin g the tw o wom en. Id. at 597. The trial court instructed the jury that it could consider defendant s flight after the crime as circumstantial evidence of his guilt or innocence. Id. at 608. Before the California Supreme Court, Moon argued that the court erred in giving the instruction because the inference that he suffered a guilty conscience and thus probably killed the victims, was irrelevant because he admitted having killed them. Id. Although he admitted to the murders, Moon contested his mental state at the time of the killin gs. Id. The California Supreme Court determined that [e]ven if he concede d at trial his guilt of some form of criminal homicide, the prosecution is still entitled to prove its case and especially to prove a fact so central to the basic question of guilt as intent. We hav e previous ly rejected the notion that the flight instruction is improper when an accused concedes the issue of identity and merely contests his mental state at the time of the crime. Id. Therefore, the court concluded that flight instructions are proper not only because flight evidence is relevant to th e ultimate issu e of guilt, bu t also becau se it is circumstantial evidence of inten t. Id. Thus, because f light eviden ce may be p robative w ith respect to intent as well as guilt, we decline to hold that giving a flight instruction is per se improper. 18 The position urged upon this Court by Mr. Thompson has been adopted b y a minority of our siste r states. See Ha dden v. Sta te, 42 P.3d 495, 508 (Wyo. 2002) (determining that the giving of a flight ins truction is reversible error because it im permissibly em phasizes a s ingle piece of circum stantial eviden ce); Dill v. State, 741 N.E.2d 1230, 1233 (Ind. 2001) (concluding that the flight instruction should not be given because it is confusing, unduly emphasizes specific ev idence, and is misleading ); State v. Ha ll, 991 P.2d 929, 937 (Mont. 1999) (holding that flight instructions should not be given because of the limited probative value of the evid ence); Fenelon v. State, 594 So.2d 292, 295 (Fla. 1992) (determining that the better policy in future cases where ev idence of flight has be en prope rly admitted is to reserve comment to counsel due to the disagreement over what kind and what amount of evidence will support the giving of a flight instruction); Renner v. State, 397 S.E.2d 683, 686 (Ga. 1990) (holding that while the state may offer evidence of and argue flight, it shall be reversible error for a trial court in a criminal case to charge the jury on flight because the instruction could be interpreted by the jury as implying that the trial court believ es there to be evidence of flight that indicates a consciousness of guilt of the defenda nt); State v. Cathey, 741 P.2d 738, 748-49 (Kan. 1 987) (disap proving o f flight instruc tions becau se it emphasize[s] and single[s] out certain evide nce adm itted at a crimin al trial ); State v. Grant, 272 S.E.2d 169, 171 (S.C. 1980) (holding that flight instructions are either an unnecessary sanction [of] the use of circumstantial evidence or improper comment that place[s] undue emphas is upon that e vidence ); State v. Stilling, 590 P.2d 1223, 1230 (Or. 1979) (stating that 19 the significance of flight should be left to argume nt ); State v. Reed, 604 P.2d 1330, 1333 (Wash. Ct. App. 1979) (o bserving that evidence o f flight should be reserve d for counsel s argumen t, with little if any comment by the bench because of the danger of plac[ing] undue emphas is upon that evidence . ); State v. Fleming, 523 S.W .2d 849, 85 4 (Mo. C t. App. 1975) (noting that the Missouri Sup reme Court had prospectively barred flight instructions). Because we h ave d eterm ined that t he fl ight instr uctio n ma y be appropriate under c ertain circumstances, and that, as the instruction appears in the Maryland Patter Jury Instructions, the flight instruction does not impermissibly emphasize the value of flight evidence, we decline to adopt the position that flight instructions are per se improp er. The Flight Instruction Was Improper In The Case Sub Judice Mr. Thompson argues that even if this Court concludes that flight instructions are not per se improper, the trial judge abused his discretion in giving the flight instruction in the present case because the necessarily circumscribed universe of facts presented to the jury rendered the instruction misleading. Co nversely, the State contends that becau se Mr. Thompson did not object to the admission of the flight evidence, although he knew that the jury would not be inform ed of his as serted alterna te motivation for fleeing from the police, the instruction was proper. We conclude that the trial judge abused his discretion in giving the flight instruction under the circumstances presented in the case sub judice. We review a trial judge s decision whether to give a jury instruction under the abuse of discretio n stand ard. Conyer s v. State, 354 Md. 132, 177, 729 A.2d 910, 934 (1999 ); 20 Gunning v. State, 347 Md. 332, 353-54, 701 A.2d 374, 384 (1997). In Thoma s v. State, 372 Md. 342, 812 A.2d 1050 (2002), we adopted the four-prong test set forth by the United States Court of App eals for the F ifth Circuit in United States v. Myers, 550 F.2d 1036 (5th Cir. 1977), with respect to the probative value of evidence indicating consciousness of guilt and the rubric for assessing the propriety of jury instructions based on such evidence.4 In Myers, the defendant was cha rged with three counts of armed bank robbery and was subseque ntly convic ted. Id. at 1039. On app eal, Myers arg ued that the trial court erred in instructing the jury concerning the proper use of evidence indicating that he fled from FBI agents on two occasio ns . . . subsequent to the commission of the robbery. Id. at 1048. The United States Court of Appeals for the Fifth Circuit concluded that the probative value of flight evidence as circumstantial evidence of guilt depends upon the degree of confidence with which four inferences can be drawn: (1) from 4 See e.g., Blanco, 392 F.3d at 395 (noting that [f]light instructions a re valid only if there is evidence sufficient to support a chain of unbroken inferences from the defendant s behavior to the defen dant s guilt of the crime ch arged. ); Wright, 392 F.3d at 1278 (quoting with approval the four inferences set forth in Myers); United States v. Touchstone, 726 F.2d 1116, 1119-20 (6th Cir. 1984) (same); United States v. Martinez, 681 F.2d 1248, 1 255-56 (1 0th Cir. 198 2) (same); Ex Parte Jones, 541 So.2d 1052, 1056 (Ala. 1989) (observing that an instruction on flight should not be given unless there is sufficient evidence on the record to support the four inferences stated in Myers); Scott v. United States, 412 A.2d 364, 371 (D.C. 1980) (citing Myers and noting that [a] f light instruction is improper unless the evidence reasonably supports the inference that there was flight or concealment and that the defendant fled because o f consciou sness of g uilt and actua l guilt of the crime ch arged. ); State v. Gomez, 848 A.2d 221, 229-30 (R.I. 2004) (stating that the court had previously adopted the four-prong test set forth in Myers for the propriety of flight instructions); State v. Perr illo, 649 A.2d 1031, 1034 (Vt. 1994) (quoting from Myers). 21 the defendant s behavio r to flight; (2) fro m flight to consciousness of guilt; (3) fro m consc iousness o f guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charg ed to actual guilt of the crime charged. Id. at 1049. Moreover, the Court held that a flight instruction is improper unless the evidence is sufficient to furnish reasonable suppo rt for all four of the necessary inferen ces. Id. at 1050, citing Morris v. United States, 326 F.2d 192, 195 (9th Cir. 196 3); State v. Bruton, 401 P.2d 340, 341-42 (Wash. 1965); E. Cleary, McCormick on Evidence ยง 271 at 655 n.3 (rev. ed. 1972). We agree with those jurisdictions which have determined that a flight instruction should not be given unless the four inferences explicated in Myers reasonably may be drawn. Therefore, for an instru ction on flig ht to be given properly, the following four inferences must reasonab ly be able to be d rawn fro m the fac ts of the case as ultimately tried: that the behavior of the def endant su ggests fligh t; that the flight su ggests a co nsciousne ss of guilt; that the conscio usness of guilt is related to the crime charged or a closely related crime; and that the consciousness of guilt of the cr ime charg ed sugge sts actual guilt of the crime charged or a clos ely related crime. It is the third inference, that the consciousness of guilt was consciousness of guilt of the crimes for which he was on trial, that is at issue in the case sub judice. Myers, 550 F.2d at 1049; Thomas, 372 Md. at 352, 812 A.2d at 1056. In Thomas, we examined the effect of the third Myers prong: 22 It is the Myers third prong , from con sciousness of guilt to consciousness of guilt concerning the crime charged, th at in the instant case is particularly important. Knowledge that the person is suspected of the charged crime is important because the value of the conduct lies in the culprit s knowledge that he or she has committed the charged offense and in his or her fear of apprehension. In the context of flight, one court noted: From this analysis of the reasons for the admissibility of such evidence, the force of the rule that evidence of flight because of one crime cannot be consid ered on th e trial of another and entirely different offense is apparent, as in such case the flight do es not disclo se any guilty consci ence in regard to the of fense in questio n. Thus many c ourts emphasize the importance of connecting a defendant s consciousness of guilt to a consciousness of guilt for the specific crime a lleged. There must be an evidentiary basis, either direct or circumstantial, to connect a defend ant s consciousness of guilt to the particular crime charged. Thomas, 372 Md. at 354-55, 812 A.2d at 1057 (citations a nd footn ote omitted; e mphasis added ). The gravamen of the issue is whether Mr. Thompson fled in an attempt to avoid apprehension for the crimes for which he was on trial. In the present case, the jury was not presented with evidence of what may have been an alternative and at least a cogent motive for Mr. Thompson s flight, specifically that drugs were found on his person.5 During h is interview with police, Mr. Thompson asserted that he ran from them because he had drugs in his possession, which, according to the State, amounted to eighty-six vials of crack cocaine 5 The evidence of the cocaine had been suppre ssed. Obviously, Mr. Thompson would not have chosen to introduce any evidence of his possession of dru gs, which could have unduly influ ence d the jury. 23 at the time of his a rrest. He was in essence arrested in flagrante de licto 6 with respect to the crime of possession of controlled dangerous substances. We find that this fact, which was known to all parties involved although not revealed to the jury, undermines the confidence by which the inference could be drawn that Mr. Thompson s flight was motivated by a consciousness of guilt with respect to the crimes for which he was o n trial in the present case; it provides a foundation for the alternate, and equally reasonable, inferenc e that Mr. Thomp son fled d ue to the co caine in his possession, an action a person in his position may have taken irrespective of whethe r he also shot and attemp ted to rob Mr. Go ttesman. Mr. Thompson thus was placed in a difficult situation where he must either not object to the highly prejudicial evidence concerning his possession of a significant amount of cocaine being introduced to the jury to explain his flight (or perhaps forced to make a Hobson s choice to introduce such evidence himself), or decline to ex plain his flight and risk that the jury wou ld not in fer an a lternativ e expla nation f or his flig ht. The Mississippi Supreme Court in Fuselier v. State, 468 So.2d 45 (M iss. 1985), addressed a similar situation . In that case, the defenda nt, an escap ee from th e Louisian a State Penitent iary, was charged with the murder of a woman as well as the theft of her car. At his trial, the prosecution presented evidence that when police arrived at the house where the defendant was staying, he jumped out of a back window and attempted to run tow ard some 6 Black s Law Dictionary defines the term in flagrante d elicto as in the very act of committing a crime or other wrong; red-handed. Black s Law Dictionary 794 (8th ed. 2004). 24 woods. Id. at 57. During the guilt phase of the defendant s trial the fact that he was an escapee from the L ouisiana S tate Penitentiary was not presented to the jury, and at the close of the trial, the trial court gave a flight instruction. The defendant argued that the evidence of his flight did not support the flight instruction because, as an escapee, he had an independent sufficient cause to flee. Id. The Mississippi Supreme Court determined that the defendant was obviously pu t in a no-win situ ation by either being required to explain his flight by the fact that he was a prison escapee or not explaining the flight and subjecting himself to a flight instruction. Id. The Court con cluded tha t because the court w as aware of an exp lanation for [the defendant s] flight, which was at that time inadmissible, we are of the of the opinion that the flight instructio n shou ld not h ave be en gran ted. See also Young v. State, 601 So.2d 636, 638 (Fla. Dist. Ct. App. 1992 ) ( [T]he admission of evidence of flight from one crime scene during a short period of time when several crimes have been com mitted mak e it difficult, if not impossible, to determine that the flight resulted from feelings of guilt attributable to a particul ar crime ). Where the defendant possesses an innocent explanation that does not risk prejudicing the jury against him, it would be expected that the defendant would present his purported reasons for his flight to the jury. It is error, however, for the trial judge to give such an instruction in a case like the case sub judice where the defendant would be prejudiced by the revelation of the guilty explanation for his flight. The circumstances of the case at bar 25 impaired the confidence with which the inference that Mr. Thompson fled from police due to a consciousness of guilt with respect to the crimes charged could be drawn and rendered the instruction misleading as to the existence of an alternative basis fo r Mr. Thom pson s flight fr om the police. Because Mr. Thompson could not be expected to introduce the independent basis for his flight, at the risk of prejudicing his position through the admission of being in possession of crack cocaine, no evidence was adduced concerning the other motivations that may be fully consistent with innocence of the crimes for which he was being tried. We cannot be sure whether this silence on his part in the face of the flight instruction im pacted the jury s perception of the evidence of flight, such that we cann ot assert a belie f beyond a re asonable doubt that the erroneous flight instruction did not influence the jury s v erdict. Therefore, we conclude that giving the flight instruction constituted an abuse of discretion. Conclusion Based on our prior holdings concerning evidence of flight, we determine that it is not per se improper to instruct the jury on the inferences that could be drawn from a defendant s flight. We conclude, however, that based on the facts of the case sub judice the trial judge abused his discretion in giving a flight instruction in the present case. Therefore, we reverse the judgment of the Court of Special Appeals. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED 26 TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCU IT COURT FOR BALTIMORE CITY AND TO REMAND THE CASE TO THAT COURT FOR A NEW TRIAL. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY THE M A Y O R AND CITY COUNCIL OF BALTIMORE . 27
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