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Mark D. Gunning, Sr. v. State of Maryland - No. 132, 1995 Term and Gary L. Harris v. State of Maryland - No. 19, 1996 Term CRIMINAL LAW - Jury Instructions - Eyewitness Identification -- Judge abused discretion by determining eyewitness identification instruction was improper and that it should never be given.

IN THE COURT OF APPEALS OF MARYLAND No. 132 September Term, 1995 ___________________________________
Circuit Court for Baltimore City Case # 294091001

MARK D. GUNNING, SR. v. STATE OF MARYLAND ***********************************
Circuit Court for Baltimore City Case # 895207011

No. 19 September Term, 1996 ___________________________________ GARY L. HARRIS v. STATE OF MARYLAND ___________________________________ Bell, C. J. Eldridge Rodowsky Chasanow Karwacki Raker Wilner JJ. ___________________________________ Opinion by Chasanow, J. Raker and Wilner, JJ., Concur and Dissent ___________________________________

Filed:

Two cases before the Court, Mark D. Gunning, Sr., v. State, No. 132, September Term, 1995, and Gary L. Harris v. State, No. 19, September Term, 1996, present the identical issue: whether the

trial judge erred in refusing to give a requested jury instruction on eyewitness identification. In both cases the defendant was

convicted based on the uncorroborated identification of a single eyewitness and in both cases the defense was mistaken

identification.

Each case involves the same circuit court judge

whose refusal to read the instruction was based on his conclusion that "identification is a question of fact" that, unlike a question of law, requires no instruction to the jury. The judge indicated

on the record that he, in fact, "never give[s] that instruction." (Emphasis added). In light of the commonality of issues and For

relevant facts, we shall decide both cases in this opinion.

the reasons set forth below, we hold that the trial judge abused his discretion and we reverse the petitioners' convictions.

I.

Mark D. Gunning, Sr. Mark

We begin with a brief summary of the facts in each case.

D. Gunning, Sr., was charged with robbery with a deadly weapon and related offenses arising from the February 4, 1994, robbery of Marie Hoopes. Gunning was convicted on all charges by a jury in

the Circuit Court for Baltimore City. At trial, Ms. Hoopes testified that she was attacked near her residence in Baltimore as she and her husband were entering their

-2vehicle. The assailant grabbed Ms. Hoopes around her neck, held a Ms. Hoopes never

knife to her throat, seized her purse, and fled. saw her attacker's face. Mr. William Hoopes testified that he was

seated

in

the He

driver's seat of his vehicle during the attack on his wife.

indicated that he was approximately two feet from the assailant and stated that he looked "straight in [the assailant's] eyes." Mr.

Hoopes further testified that the attacker was wearing "dark pants and [a] dark jacket," had on a "black baseball cap ... with the [bill] turned around backwards," was "between five-eight and six foot" in height, and had a mustache. trial identification of by Mr. Hoopes made both a prearray and of an the in-court crime.

photographic as the

identification

Gunning

perpetrator

Gunning asserted an alibi defense to the charges.

He

presented testimonial evidence that he was at home watching a video tape with his father, sister, and a friend at the time of the robbery. Mr. Hoopes was thus mistaken, Gunning argued, in

identifying him as the perpetrator. At the close of evidence, Gunning's counsel provided the court with proposed jury instructions, in MICPEL, including MARYLAND an identification PATTERN JURY

instruction INSTRUCTIONS.

contained

CRIMINAL

That instruction, MPCJI-Cr 3:30, provided:

"The burden is on the State to prove beyond a reasonable doubt that the offense was committed and that the defendant was the

-3person who committed it. You have heard evidence regarding the identification of the defendant as the person who committed the crime. In this connection, you should consider the witness' opportunity to observe the criminal act and the person committing it, including the length of time the witness had to observe the person committing the crime, the witness' state of mind and any other circumstance surrounding the event. You should also consider the witness' certainty or lack of certainty, the accuracy of any prior description and the witness' credibility or lack of credibility, as well as any other factor surrounding the identification. [You have heard evidence that prior to this trial, a witness identified the defendant by _______.] It is for you to determine the reliability of any identification and to give it the weight you believe it deserves. The identification of the defendant by a single eyewitness, as the person who committed the crime, if believed beyond a reasonable doubt, can be enough evidence to convict the defendant. However, you must examine the identification of the defendant with great care." Counsel also requested the following mistaken identity instruction, which follows substantially the text of DAVID E. AARONSON, MARYLAND CRIMINAL JURY
INSTRUCTIONS,

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