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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 60 September Term, 1996 ________________________________ ROY MONROE ROBERTSON v. STATE OF MARYLAND ________________________________ Harrell, * Wilner, Alan B., Getty, James S. (retired, specially assigned) JJ. ________________________________ Opinion by Harrell, J. Dissenting Opinion by Getty, J. ________________________________ Filed: December 2, 1996

* Participated in the hearing and decision of this case while an active member of this Court; after being appointed to the

Court of Appeals, he was specially assigned to the Court of Special Appeals and participated in the adoption of this opinion. Appellant, Roy Monroe Robertson, was convicted by a jury in the Circuit Court for Carroll County of first-degree murder and use of a handgun in the commission of a felony. The court sentenced

appellant to life imprisonment, without the possibility of parole, for the murder conviction and a consecutive fifteen year term of imprisonment for the handgun conviction. Among appellant's several

points of alleged error is the trial judge's refusal to grant his request for a specific jury instruction on an alibi defense. We

conclude that there was sufficient evidence in the record to have compelled granting appellant's request for an alibi instruction. We further conclude that, under the facts and circumstances of this case, the trial judge's failure to propound the requested alibi instruction, or one otherwise instructing the jury as to an alibi defense, constituted reversible error. reverse the judgment of the circuit court. Accordingly, we shall

ISSUES

Among the six questions presented by appellant for our review is the following, which we have rephrased as follows: Whether testimony regarding an accused's alibi that is offered by a prosecution witness in the form of statements made to him by the accused, standing alone, constitutes

sufficient evidence to warrant instruction, if requested.

an

alibi

Because our resolution of this question is dispositive of this appeal, we need not consider appellant's five other questions.1 FACTS

On 18 February 1993, at approximately 12:20 p.m., the body of Charles Prodoehl was discovered in a snow-covered fishing area near Starner's Dam on the Monocacy River in Carroll County. who examined the body within five minutes of its A doctor discovery

1

Appellant's other contentions on appeal are the following: I. Were certain remarks made by the trial court to appellant's counsel in front of the jury improper? II. Did the trial court err in permitting an investigating officer to opine about appellant's veracity and the evidence against appellant? III. Did the trial court err in denying appellant's motion to suppress statements he made to an undercover police officer placed in his cell? IV. Did the trial court err in refusing to compel two police officers who testified for the State to disclose notes taken during their investigation? V. After a police officer testified that an alternative suspect had taken a polygraph test, did the trial court err in 1) failing to grant a mistrial, or 2) refusing to admit the results of the test? 2

initially concluded that the victim had been dead for approximately eighteen to thirty hours. An investigation of the crime scene The

indicated that there were no signs of a struggle or robbery.

autopsy report revealed that Prodoehl had been shot twice in the head, although no defensive wounds were found on the body.

Further, one of the victim's wounds had gunpowder stippling, indicating that the gun used in the shooting was touching or very near the victim's head when it was discharged. Three individuals became immediate suspects in the murder: the victim's wife, Gina, and two of her lovers, appellant and Douglas Crouse. At the time of the murder, appellant was living in The police investigated the murder for almost Most of the

the Prodoehl home.

two years before charging appellant with the murder.

evidence against appellant came from conversations he had with Trooper George Forsythe and John Staubitz, Jr. Ten months after the murder, appellant was arrested on

unrelated charges and incarcerated at the Carroll County Detention Center pending trial on those charges. From 31 December 1993 to 5

January 1994, Trooper George Forsythe, posing as an incarcerated murder suspect, was placed in appellant's cell. During this time,

appellant confided in Forsythe that Gina and he had been having an affair and that they had planned on splitting a $100,000 life insurance policy on Prodoehl's life. When Forsythe intimated that

appellant had been "duped" by Gina, appellant replied, "[s]he knows, if I go away for a long time, she will, too." 3

The most incriminating statements appellant made to Forsythe came during a discussion in which appellant, using the rhetorical device of third-person self-reference, recounted in detail

Prodoehl's murder.

During this discussion, appellant told Forsythe

that the murderer threw the murder weapon into Big Pipe Creek from a bridge off of Maryland Route 140. Forsythe relayed this

information to the police who conducted a search of the creek and the surrounding area for the gun. The police discovered a .32

caliber gun deep in the river bed, yet within throwing distance of the bridge. A firearms expert determined that the gun was more

likely than not the murder weapon. In August 1994, appellant was sentenced on the unrelated charges and transferred to the Roxbury Correctional Institute in Hagerstown, Maryland. During his incarceration at Roxbury,

appellant became friendly with a fellow inmate, John Staubitz, Jr.2 Appellant went to Staubitz seeking help in setting forth a

chronology of events surrounding the murder.

Over the next several

months, appellant also went to Staubitz for legal advice and assistance in writing letters about his case. Sometime in February

1995, appellant approached Staubitz in a highly anxious state. Appellant told Staubitz that the investigators had gathered more evidence than he originally thought, and that Gina might now

John Staubitz, Jr. had been a state official before his convictions for conspiracy to commit misconduct in office, as well as several other offenses. 4

2

testify against him.

Appellant wanted Staubitz's help in filling Appellant then gave During

in the details of his earlier chronology.

Staubitz a detailed and descriptive account of the murder.

this recounting of events, appellant told Staubitz three or four times that he had killed Charles Prodoehl. During appellant's fourteen day trial, it was the State's theory that appellant shot and killed Prodoehl for a portion of the $100,000 life insurance policy on Prodoehl's life, and so that he and Gina could continue their relationship. According to the

State, the crime was committed at approximately 4:30 p.m. on 17 February 1993. In contrast, the defense theory was that Douglas Appellant

Crouse, Gina's other lover, was the actual perpetrator.

asserts on appeal, as he did in statements made to Sgt. Coppinger which were introduced at trial, that throughout the day that the murder allegedly occurred, he was engaged in innocuous activities: primarily at his job, at home, running errands, and at a bowling alley. At trial, the State introduced other evidence that, during the investigation, appellant was asked for his work boots to determine if they matched the boot imprints taken from the snow near

Prodoehl's body.

Appellant attempted, however, to "pass off" a Appellant's boots were

pair of his co-workers boots as his own.

later discovered hidden in a shed on the farm where appellant worked. These boots were "similar and consistent" to the boot

imprints found at the crime scene, except for "slices" on the soles 5

of the boots.

One of appellant's co-workers observed appellant

slicing the soles of his boots with a knife sometime that spring.

The

State

also

offered

the

testimony

of

Sgt.

Thomas

P.

Coppinger, who recounted a statement appellant had given to him on 23 February 1993. In that statement, appellant claimed that he According to appellant,

arrived home at approximately 1:45 p.m.

around that time Prodoehl was preparing to go fishing and invited appellant Appellant to join him. he Appellant and the declined victim the invitation. house at

stated

that

left

the

approximately the same time, the time being "no later than 3:00 p.m.," and each went their separate way. After leaving the

Prodoehl residence, appellant went to the Sheetz store, the post office, and then to the K-Mart in Westminster so that he could rendezvous with Gina Prodoehl. Appellant met Mrs. Prodoehl at the

K-Mart, but he did not go inside because he had soiled his undergarments. Next, appellant stated that he returned home,

discarded his underwear, and cleaned himself and his pants in the shower. According to appellant's statement, Mrs. Prodoehl returned Appellant ate

home with her son, Carl, at approximately 4:45 p.m. dinner with them and then went bowling. not testify in his own defense at trial.

Appellant, however, did

At the close of all the evidence, appellant made several requests to the court for proposed jury instructions. Among those

was a request that the court propound Maryland Criminal Pattern 6

Jury Instruction Number 5:00 (Alibi). follows:

That instruction reads as

Evidence has been introduced that the defendant was not there when the crime was committed. You should consider this evidence along with all other evidence in this case. Thus, in order to convict the defendant, the State must prove, beyond a reasonable doubt, that the crime was committed and the defendant committed it. MPJI-Cr. 5:00 (1995). The court denied this request. reasoned as follows: I do not feel that is a proper instruction for this case simply because I have heard no [alibi] witnesses take the stand in the Defense case. [Mr. Robertson] present[s] a theory that the Defendant can offer an alibi through statements that he made to various police officers who testified as witnesses for the State. I don't think that the instruction or the various cases which are referred to in the comment section anticipate an alibi defense being made in the way that you wish to present that defense. There have been no alibi witnesses for the Defense in this case. Appellant was subsequently convicted of first-degree murder and use of a handgun in the commission of a felony. he noted a timely appeal to this Court. From those convictions In so ruling, the trial court

ANALYSIS

We begin our analysis of the sole issue that we need address by reiterating a settled proposition of Maryland law that "it is incumbent upon the court, . . . when requested in a criminal case, 7

to give an instruction on every essential question or point of law supported by the evidence." A.2d 428, 433 (1954). Bruce v. State, 218 Md. 87, 97, 145

Accord Smith v. State, 302 Md. 175, 179, 486

A.2d 196, 198 (1985); Pulley v. State, 38 Md. App. 682, 686, 382 A.2d 621, 624 (1978); Couser v. State, 36 Md. App. 485, 499, 374 A.2d 399, 406-07 (1977), aff'd 282 Md. 125, 383 A.2d 389, cert. denied, 439 U.S. 859, 99 S. Ct. 158, 58 L. Ed. 2d 156 (1978). In

other words, a defendant is generally entitled to present his theory of the case through a requested instruction when there is evidence before the jury that supports it. Johnston v. State, 303

Md. 487, 512, 495 A.2d 1, 13 (1985), cert. denied, 474 U.S. 1093, 106 S. Ct. 868, 88 L. Ed. 2d 907 (1986). Md. Rule 4-325(c)

incorporates these principles by stating, "[t]he court may, and at the request of any party shall, instruct the jury as to the applicable law." consistently mandatory. The word "shall" as employed in the rule has been to render the directions of the rule

construed

Binnie v. State, 321 Md. 572, 582, 583 A.2d 1037, 1041

(1991), Smith, 302 Md. at 180, 486 A.2d at 198; Lansdowne v. State, 287 Md. 232, 238-39, 412 A.2d 88, 91 (1980). An alibi is "[a] defense that places the defendant at the relevant time of [the] crime in a different place than the scene involved . . . ." Black's Law Dictionary 46 (6th ed. abridged To prove

1991); see Smith, 302 Md. at 180, 486 A.2d at 198 (1985).

an alibi, "the testimony must cover the whole time in which the

8

crime by any possibility might have been committed . . . ." v. State, 205 Md. 573, 581, 109 A.2d 729, 732 (1954). Due process requires the State to establish every

Floyd

fact

necessary to constitute the crime with which the defendant is charged, including his criminal agency, beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368 (1970); Davis v. State, 285 Md. 19, 24-31, 400 A.2d 406, 408-12 (1979); State v. Grady, 276 Md. 178, 181-82, 345 A.2d 436, 438 (1975). See generally, R. Gilbert & C. Moylan, Jr., Maryland An alibi

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