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Criminal defendants in Maryland who are convicted often file a Petition for Post-Conviction Relief, in which they claim that they received ineffective assistance of counsel. The argument that is made is that errors were made by counsel that were so egregious as to effectively deprive the accused of a competent defense in violation of their right to counsel. One issue that may be raised involves the Court’s instructions to the jury such as a missing evidence instruction, as explored in a recent unreported opinion from Maryland’s Court of Special Appeals in a case called State of Maryland v. Anthony Hooks.
The Court’s opinion indicates that Hooks was convicted of possession of heroin with intent to distribute, assault on a police officer, illegal possession of a firearm and other offenses. The evidence at trial was that an officer responded to a 911 call about a man brandishing a hand gun. The officer said he saw the defendant who matched the description in the call, and who then fled. The officer testified that he saw the defendant take out a hand gun, and fired his service weapon at him four times but missed, whereupon the defendant surrendered and the gun and drugs were found.
At trial, the defense claimed that the police had failed to review or preserve footage from a surveillance camera in the area, that the defense said would show that Hooks did not have a gun so the police must have planted it. A Detective testified that they did not review or preserve the footage but focused on obtaining statements from witnesses. Defense counsel did not ask the Court to give an instruction to the jury that if there was missing evidence that was peculiarly within the State’s power to preserve, the jury could infer that the evidence would be prejudicial to the prosecution’s case. The trial judge granted post-conviction relief to the defendant and ordered a new trial.
The appellate court disagreed with the trial judge, and reinstated the convictions. It noted that post-conviction relief required the defendant to prove that his counsel’s performance was so deficient as to effectively violate his 6th amendment right to counsel, and that counsel’s performance prejudiced the defense. Here, the Court noted that there was no evidence that surveillance footage would have shown what the defense claimed or have benefited his defense, nor that it was standard procedure for the police to preserve such surveillance footage.
Under these circumstances, the Court held that a missing evidence instruction would not have been justified, so there was no showing that counsel’s failure to request it prejudiced the defense.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.