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HEADNOTE: Ashanti Cost v. State of Maryland, No. 116, September Term, 2009 CRIMINAL PROCEDURE -- JURY INSTRUCTIONS -- PARTICULAR INSTRUCTIONS -- EVIDENCE -- PRESUMPTIONS & INFERENCES -- Petitioner inmate was accused of stabbing a fellow inmate. The cell belonging to the alleged victim was isolated and the alleged victim's bloody clothes, towels, and bed linens were taken into evidence. The evidence was not preserved for investigation, however, and was disposed of by the correctional facility. The alleged victim's cell was also cleaned instead of being preserved. At trial, petitioner requested a jury instruction pertaining to the destroyed evidence, and his request was denied. The trial court erred in denying the requested jury instruction. Maryland evidentiary law recognizes that missing evidence or spoliation of evidence can be a proper subject for a jury instruction, as instructions on the destruction of evidence are allowed in both civil cases and in criminal cases where a defendant has destroyed the evidence. Missing evidence instructions emphasize that a jury may infer that a party destroying evidence had consciousness of a weak case, or that the evidence was unfavorable to the spoliator. The purpose of such instructions is to draw attention to the fact that a party ordinarily does not withhold beneficial evidence. This was equally true in this case, where the evenhanded application of the missing evidence inference would provide a remedy for the State's destruction of evidence. This remedy is a matter of substantive evidence law, and does not touch on constitutional due process issues.

In the Circuit Court for Baltimore City Case No. 206027016

IN THE COURT OF APPEALS OF MARYLAND No. 116 September Term, 2009

ASHANTI COST v. STATE OF MARYLAND

Bell, C.J., Harrell Battaglia Greene Murphy Adkins Barbera, JJ.

Opinion by Adkins, J.

Filed:

December 17, 2010

Petitioner Ashanti Cost was convicted of reckless endangerment for an alleged stabbing attack on Michael Brown, a fellow inmate at the Maryland Correctional Adjustment Center ("MCAC"). During the course of investigating the incident, the State sealed Brown's cell and took several items of physical evidence into custody. Apparently, these items were later disposed of by the State, rather than being preserved as evidence for use in Cost's trial. At trial, Cost sought a jury instruction regarding the destruction of this evidence, but his request was denied. Additionally, after his conviction, Cost received records indicating that Brown had a history of inflicting stab wounds upon himself. Cost unsuccessfully argued that this information should have been disclosed as material under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). We granted certiorari to consider the following two questions: 1. Did the lower court err in holding that the trial court did not err in failing to instruct the jury on spoliation because such an instruction is never required in criminal cases? 2. Did the State violate its obligation under [Brady], when it failed to disclose that the victim had a history of self-inflicted superficial stab wounds while in State custody? We shall hold that the trial court erred by refusing Cost's proposed instruction, vacate Cost's conviction, and remand for a new trial. Because we so hold, we need not reach the second question presented. FACTS AND LEGAL PROCEEDINGS Petitioner Ashanti Cost is an inmate at the Maryland Correctional Adjustment Center, a so-called "Supermax" prison, located in Baltimore City. At the time of the events giving rise to this appeal, Cost had recently been transferred to MCAC from another facility in Hagerstown. Cost alleges that this transfer to the more restrictive facility was retaliation for

Cost's testimony before a Senate committee investigating the death of a Hagerstown facility inmate at the hands of prison guards. According to the State, Cost attacked another MCAC inmate, Michael Brown, on September 28, 2005. Brown was detained at MCAC as a material witness for the federal government in a separate case. Cost was charged with assault in the first degree, assault in the second degree, openly wearing and carrying a deadly weapon with intent to injure, and reckless endangerment. At the time of the alleged attack, both Cost and Brown were "locked down" in their cells for twenty-three hours per day, except for medical escorts and one hour of "outside activity." This is standard practice in many "Supermax" prisons such as MCAC. At Cost's trial in the Circuit Court for Baltimore City, Brown testified that he had been a federal informant for approximately six years, and that Cost had previously threatened to kill Brown because he was an informant. According to Brown, Cost threw feces into Brown's cell through cracks in the cell door, and issued a vulgar threat against Brown. Brown further testified that Cost grabbed Brown's clothing through a food slot in the cell door, pulled him close to the door, and stabbed him in the abdomen with an approximately six-inch long metal weapon "like an ice pick." Brown claimed that the wound "was bleeding a lot . . . running like water." Brown testified that he was admitted to Johns Hopkins Hospital and treated for "internal bleeding, dizziness, a lot of things like that." At trial, Cost pointed to a number of facts that he alleged cast doubt on Brown's version of events. To begin with, Cost had been searched before being allowed to leave his cell, and no weapons or other contraband were found on his person. After the attack, the 2

entire unit area was searched for weapons, and none were recovered. Cost also challenged the alleged severity of Brown's injury, drawing support from Brown's hospital discharge forms. In particular, Cost relied on medical records stating that Brown's alleged ice pick wound was "approximately 1 inch long [and] only penetrated the skin" and was "approximately 3 millimeters in length . . . ." Brown's recommended course of treatment was "over-the-counter pain relief such as Tylenol or ibuprofen[,]" which Cost argued cast doubt on the severity of the injury. More significantly, Cost focused on a series of unusual evidence and chain of custody issues that arose relating to the condition of Brown's cell. At trial, the State introduced as evidence photographs of Brown's cell taken the evening following the alleged attack. The photographs show significant red staining on the floor of the cell, which Brown identified as his blood.1 Brown also testified that the photographs showed a towel which he had used to try to stop his abdominal bleeding. Major Donna Hansen, who was MCAC's investigative officer at the time of the attack and who took the photographs, testified that when she entered Brown's cell she observed "a large amount of what appeared to be blood and smelled like blood on the floor and on the mattress[,]" as well what she believed to be several towels lying on the floor. She further testified that she did not collect any towels or bedding as evidence, as that would be the responsibility of the Department of Public Safety and Correctional Services's Internal Investigative Unit ("IIU"). Hansen testified that on the night of the

At trial, Cost endeavored to explain the staining in the cell by suggesting that it was caused by melted red Jell-O. 3

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attack, she placed a call to Detective Bob Fagen, the IIU duty officer on the day in question. There is some uncertainty as to precisely what events followed Hansen's alleged call to Detective Fagen. According to Detective Karen Griffiths, a detective with the IIU at the time of these events, she received a call from Hansen on October 3, 2005, five days after the attack. Griffiths testified that Hansen said "that she had a cell sealed and wanted to know if [IIU] would release that cell . . . ." According to Griffiths, this was the first time she became aware of the attack. Griffiths further testified that when she queried her supervisor about the case, it was assigned to her. After the assignment, Griffiths went to MCAC to pursue her investigation. She did not, however, examine Brown's cell, because it had been cleaned. In addition, no physical evidence had been preserved from the cell

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