Taylor v. State , 473 Md. 205 ( 2021 )

Devon Jordan Taylor v. State of Maryland
No. 2, September Term 2020
Appeals – Preservation – Substantial Compliance. Under Maryland Rule 4-325(e), a
party in a criminal trial that wishes to preserve an objection to a jury instruction must (1)
object on the record promptly after the court instructs the jury, (2) state the matter to which
the party objects, and (3) identify the grounds of the objection. Defense counsel
substantially complied with that rule in objecting to the trial court’s anti-CSI effect
instruction when counsel objected to the court’s “scientific evidence instruction” after the
court finished its instructions and when the ground for that objection – the potential effect
on the burden of proof standard – was evident from the circumstances.
Criminal Procedure – Jury Instructions – Anti-CSI Effect Instruction. It was an abuse
of discretion for the trial court to give an anti-CSI effect instruction – which advised the
jury that the prosecution was not required to present scientific evidence as part of its case
– preemptively in the absence of over-emphasis by the defense on the lack of such evidence
and without reiterating that the prosecution must prove its case beyond a reasonable doubt
and that the jury may consider a “lack of evidence” in deciding whether the burden has
been satisfied.
Criminal Procedure – Appeals – Harmless Error Standard. Although the evidence
presented by the prosecution at trial may have been sufficient to support a guilty verdict,
an appellate court could not conclude beyond a reasonable doubt that the erroneous anti-
CSI effect instruction had no influence on the jury verdict, particularly when the only
evidence at trial tying the defendant to the crime was an eyewitness identification by the
victim, who had never seen her assailant before and had viewed him only briefly during
the crime, and when the jury initially reported that it was “evenly split” on the question of
the defendant’s guilt.
Circuit Court for Wicomico County
Case No. 22-K-08-000665
Argument: October 2, 2020
IN THE COURT OF APPEALS
OF MARYLAND
No. 2
September Term, 2020
_____________________________________
DEVON JORDAN TAYLOR
V.
STATE OF MARYLAND
_____________________________________
Barbera, C.J.,
McDonald
Watts
Hotten
Getty
Booth
Biran,
JJ.
______________________________________
Opinion by McDonald, J.
Biran, J., concurs.
Watts and Booth, JJ., dissent.
______________________________________
Pursuant to Maryland Uniform Electronic Legal
Filed: April 23, 2021
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-04-23
11:46-04:00
Suzanne C. Johnson, Clerk
This appeal relates to a trial of criminal charges arising out of a home invasion. The
victim of the home invasion, when presented with a photo array a month after the incident,
identified Petitioner Devon Taylor, who was otherwise a stranger to her, as the person who
forced his way into her home. No other evidence linked Mr. Taylor to the crime. He was
subsequently indicted in the Circuit Court for Wicomico County on various charges related
to the home invasion.
At Mr. Taylor’s trial, the trial judge gave what is known as an “anti-CSI effect” jury
instruction, which advises the jury that the prosecution need not prove its case through
forensic or scientific techniques often featured in police procedural television shows. After
initially indicating that it was deadlocked, the jury returned a guilty verdict.
This appeal concerns whether Mr. Taylor preserved an objection to the anti-CSI
effect instruction; if so, whether that instruction was appropriately given; and, if the
instruction was not appropriate, whether the error was harmless. The Court of Special
Appeals held that the objection was preserved and that the trial court abused its discretion
when it gave the anti-CSI effect instruction. Nevertheless, it concluded that the error was
harmless and affirmed Mr. Taylor’s conviction.
For the reasons discussed below, we agree that the instruction given at Mr. Taylor’s
trial was erroneous. In our view, however, these circumstances do not satisfy the harmless
error standard applied by Maryland appellate courts. Accordingly, Mr. Taylor’s conviction
is reversed.
I
Jury Instruction on Absence of Forensic Evidence
The jury instruction at issue in this case is a version of what is sometimes referred
to as an anti-CSI effect instruction in that it is intended to dispel a possible juror
expectation, drawn from television shows, that the prosecution ordinarily meets its burden
of proof by presenting fingerprint, DNA, or other forensic evidence linking a defendant to
a crime. In 2007, the Court of Special Appeals issued the first reported Maryland appellate
decision on the propriety of an anti-CSI effect instruction in Evans v. State, 174 Md. App.
549, cert. denied, 400 Md. 648 (2007). Beginning in 2011, this Court has dealt with such
an instruction in four decisions. See Atkins v. State, 421 Md. 434 (2011); Stabb v. State,
423 Md. 454 (2011); Robinson v. State, 436 Md. 560 (2014); Hall v. State, 437 Md. 534(2014).1
All of these decisions dealt with the same five-sentence instruction. That instruction
consists of a key statement that “there is no legal requirement that the State use any specific
investigative technique or scientific test to prove its case” bracketed by several introductory
sentences, including one telling the jury to consider “all of the evidence or lack of
evidence” in reaching its decision, and by a final sentence reiterating that the State must
prove guilt beyond a reasonable doubt. As quoted in Evans, the instruction was as follows:
1
This instruction is more appropriately labeled an “anti-missing evidence”
instruction, as it concerns the absence of a type of evidence and does not relate either to a
particular television show or, as we shall see, to an “effect” that is known to exist. It has
sometimes been referred to, more generically, as a “no duty” instruction. E.g., Stabb, 423
Md. at 456. Although the Evans and Atkins majority opinions did not refer to this
instruction as an “anti-CSI effect instruction,” the concurring opinion in Atkins used that
label and subsequent decisions have adopted it as a shorthand. For ease of reference to
those decisions, we will use that label in this opinion.
2
During this trial, you have heard testimony of witnesses and may hear
argument of counsel that the State did not utilize a specific investigative
technique or scientific test. You may consider these facts in deciding
whether the State has met its burden of proof. You should consider all of the
evidence or lack of evidence in deciding whether a defendant is guilty.
However, I instruct you that there is no legal requirement that the State
utilize any specific investigative technique or scientific test to prove its case.
Your responsibility as jurors is to determine whether the State has proven,
based on the evidence, the defendants’ guilt beyond a reasonable doubt.
174 Md. App. at 562 (emphasis added). The anti-CSI effect instruction given in each of
the other cases described in this section of this opinion was the same, in some cases with
very minor differences in wording.
The Evans decision flashed what might be characterized as a yellow caution light
concerning such an instruction. While this Court never quite turned that light red in its
subsequent decisions, it has come close to doing so.2
Evans
In Evans, the Court of Special Appeals opined that an anti-CSI effect instruction
that also reiterated the requirement that the prosecution prove its case beyond a reasonable
doubt could be permissible in some circumstances.3 With respect to the case before it, the
court pointed to defense counsel’s “robust and vehement closing arguments” about the
State’s failure to employ audio or video surveillance equipment and the lack of any other
2
Applying that case law in several reported decisions, the Court of Special Appeals
has reversed convictions resulting from trials at which an anti-CSI effect instruction was
given. Carrero-Vasquez v. State, 210 Md. App. 504 (2013); Samba v. State, 206 Md. App.
508 (2012); Allen v. State, 204 Md. App. 701 (2012).
3
The intermediate appellate court acknowledged that its discussion of the
instruction was dicta because Evans’ counsel had not objected at all to the instruction and
so had not preserved the issue for that appeal. A co-defendant not involved in the appeal
had appropriately objected to the instruction, but the Court of Special Appeals held that the
co-defendant’s objection did not preserve the issue for Evans. 174 Md. App. at 562-66.
3
investigative or scientific evidence and to the trial court’s legally “correct” explanation that
there is no requirement that the State present particular types of evidence, “as long as the
evidence adduced supports a finding of guilt beyond a reasonable doubt.” 174 Md. App.
at 570. Under these circumstances, the Evans court was satisfied that the anti-CSI effect
instruction in the case before it had not compromised the concept of reasonable doubt.
However, the court cautioned that “such an instruction will run afoul of the prohibition
against relieving the State of its burden [of proof beyond a reasonable doubt] where the
instruction is predominant in the overall instructions and its relation to the reasonable doubt
standard unclear.” Id. at 570-71.
In other jurisdictions, the instruction given in Evans – or a very similar one – has
been approved, before and after the Evans decision, both as a pattern instruction and as
given in particular trials.4 The common issue in those appeals, as in Evans, has been
whether the instruction has the effect of reducing the prosecution’s burden of proof.5
4
See, e.g., Federal Jury Practice and Instructions, Third Circuit Manual of Model
Jury Instructions – Criminal 4.14 (2020); see also United States v. Holloway, 774 Fed.
Appx. 147, 148 (4th Cir. 2019); United States v. Brown, 658 Fed. Appx. 100, 104-05 (3d
Cir. 2016); United States v. Gorny, 655 Fed. Appx. 920, 922-24 (3d Cir. 2016); United
States v. Lassend, 545 Fed. Appx. 3, 4-5 (1st Cir. 2013); United States v. Johnson, 479 Fed.
Appx. 811, 816-18 (10th Cir. 2012); United States v. Brown, 474 Fed. Appx. 945, 946-47
(4th Cir. 2012); United States v. Cox, 627 F.3d 1083, 1086 (8th Cir. 2010); United States
v. Cota-Meza, 367 F.3d 1218, 1223 (10th Cir. 2004); United States v. Saldarriaga, 204
F.3d 50 (2d Cir. 2000); United States v. Zapata, 164 F.3d 620 (2d Cir. 1998); United States
v. Temple, 122 F.3d 1064 (4th Cir. 1997); United States v. Walker, 66 F.3d 318 (4th Cir.
1995); United States v. Mason, 954 F.2d 219, 222 (4th Cir.), cert. denied, 504 U.S. 925(1992); United States v. Corcoran, 855 F. Supp. 1359, 1374-75 (E.D.N.Y. 1994).
5
See, e.g., Federal Jury Practice and Instructions, Third Circuit Manual of Model
Jury Instructions – Criminal 4.14, Comment (2020). The Evans court relied on the Second
Circuit’s 2000 decision in Saldarriaga. At the trial in that case, the trial judge had given a
“somewhat chatty” anti-CSI effect instruction that also told the jury to base its decision on
the evidence “or lack of evidence” and that stressed that the prosecution had the burden of
proving its case beyond a reasonable doubt. Saldarriaga, 204 F.3d at 52-53. The Evans
4
Atkins
This Court first addressed the propriety of this anti-CSI effect instruction in Atkins.
In that case, the defendant was involved in an altercation with several other people and was
charged with an assault that allegedly involved a knife. The defendant testified that he had
used a small pocketknife in self-defense. Police later recovered a large knife from the
defendant’s bedroom while executing a search warrant. The prosecution argued that the
large knife was the actual weapon used by the defendant, and that its use negated the claim
that he acted in self-defense and indicated that he was the aggressor. Defense cross-
examination of a police detective at trial established that no forensic evidence linked the
large knife to the alleged assault. When the trial court charged the jury, it included the
same anti-CSI effect instruction that had been given at the trial in Evans, as outlined above.
Atkins, 421 Md. at 441-42. The defendant was convicted.
On appeal, this Court reversed the conviction on the grounds that, under the
circumstances, the anti-CSI effect instruction had improperly addressed the weight of the
evidence, thereby undermining the defendant’s legitimate defense that the State had not
linked the large knife to the crime and invading the province of the jury. 421 Md. at 451-
54. Distinguishing the events of the trial from those in Evans, the Atkins Court noted, that,
in contrast to the theories advanced by the prosecution in Evans, the State’s theory that the
defendant had used the large knife was speculative and uncorroborated by other evidence.
In addition, in contrast to the “robust and vehement” defense closing argument about the
court found that the Saldarriaga instruction was “not substantially different in substance”
from the one at issue in the case before it. 174 Md. App. at 570.
5
lack of forensic evidence in Evans, defense counsel in Atkins had reasonably elicited the
lack of forensic evidence related to the knife in cross-examination, and had neither
distorted the law nor overstated the State’s burden of proof. Id. at 450.
Accordingly, the Court reversed the conviction as violative of the defendant’s right
to a fair trial under the Sixth Amendment of the United States Constitution and Articles 21
and 23 of the Maryland Declaration of Rights. The Court cautioned that it was not holding
that such an instruction could never be given. Rather, a neutral instruction that holds the
prosecution to its continuing burden to prove guilt beyond a reasonable doubt – as the
Evans court had indicated – could be appropriate in certain circumstances. 421 Md. at 454-
55.6
A concurring opinion joined by three judges provided background on the perceived
“CSI effect” of police television dramas – that jurors who watch television might have
unrealistic expectations as to the availability and results of forensic investigative
techniques – and on the efforts to counter that perceived effect, including development of
anti-CSI effect instructions. 421 Md. at 456-73 (Harrell, J., concurring). The concurring
opinion emphasized that a curative anti-CSI effect instruction could be appropriate if a
defense argument went beyond arguing a lack of forensic evidence to suggesting to the
6
The Court advised that the “better practice” is for a trial judge to refrain from
commenting on inferences to be drawn by the jury. 421 Md. at 454 n.8 (“While it would
be proper to tell the jury that the State may prove its case by whatever means it chooses,
we caution against commenting in the negative, i.e., what the State does not have to do, as
this practice, considering the context in which the instruction is given, runs the risk of
relieving the State of its burden.”).
6
jury that the prosecution was required to use specific techniques to prove its case. Id. at
473.
Stabb
The Court reiterated its analysis a few months later in Stabb and held that the anti-
CSI effect instruction given at the trial in that case violated the defendant’s constitutional
right to a fair trial. Stabb concerned an alleged sexual assault of a seven-year old girl. The
defense cross-examined a social worker who had interviewed the girl about the social
worker’s decision not to refer the girl for a Sexual Assault Forensics Exam (“SAFE”).
During a jury instruction conference of the trial judge and counsel, the prosecution
proposed the anti-CSI effect instruction described above. Defense counsel objected to the
instruction as “burden shifting” and asserted that it would be appropriate only if the defense
argument was “robust or vehement” on a need for the prosecution to present forensic
evidence. The trial judge gave the anti-CSI effect instruction prior to closing arguments.
The jury returned a guilty verdict. 423 Md. at 462-75.
This Court reversed the conviction. The Court reiterated that, although an anti-CSI
effect instruction is “not improper per se,” the trial court had abused its discretion in giving
such an instruction preemptively. 423 Md. at 462-63. First, the Court reviewed recent
scholarly research as to whether the supposed “CSI effect” actually existed – i.e., whether
jurors are actually influenced by television to believe incorrectly that the prosecution must
present forensic evidence to meet its burden of proof. Ultimately, the Court concluded that
the research was inconsistent and inconclusive. Id. at 467-70.
7
The Court then observed that the “missing” forensic evidence in Stabb (DNA or
fingerprints that would have established that the defendant had inappropriately touched the
girl) was not as critical to the prosecution as the missing forensic evidence in Atkins that
might have linked the knife to the assault in that case. Nevertheless, even though the
defense had pointed out other deficiencies in the State’s case, the absence of corroborating
scientific evidence was “an integral part of the defense theories.” 423 Md. at 471.
The Court found that it was problematic for the trial court to give a preemptive anti-
CSI effect instruction before the defense counsel’s closing argument. The Court noted that
defense counsel did not place “undue emphasis” or “‘harp’ impermissibly” on the lack of
scientific evidence in arguing that the girl’s story was not corroborated. 423 Md. at 471.
The Court observed that the defense argued that the prosecution had failed to meet its
burden in a number of ways, only one of which was the failure to perform a SAFE exam.
The Court concluded that, in giving the anti-CSI effect instruction, the trial judge “directed
effectively the jurors” not to consider the absence of corroborating physical evidence, and,
by doing so, had invaded the province of the jury. Id. at 472. The Court warned that use
of the instruction is “fraught with the potential for reversible error” and that it is best
employed as a curative instruction to correct “pre-existing overreaching by the defense.”
Id. at 473.
Robinson
Several years after the Atkins and Stabb decisions, the Court repeated much of the
analysis from those decisions in Robinson. It again reversed a conviction from a trial at
which an anti-CSI effect instruction had been given – the same instruction described above.
8
436 Md. at 563, 568, 574. The trial had taken place in 2011 just a month before the Atkins
decision was issued. The Court again expressed some skepticism as to whether a “CSI
effect” in fact exists and reiterated the guidance from the Stabb decision that, in the absence
of certainty on that score, an anti-CSI effect instruction should not be given preemptively,
but only as a curative instruction. Id. at 576-79.7
Hall
Hall arose out of a trial in early 2010, before the Atkins or Stabb decisions, of
charges related to a carjacking. The prosecution requested that the court give the anti-CSI
effect instruction described above, and the trial court did so. 437 Md. at 538. Defense
counsel objected to the instruction, stating as grounds that the instruction intimated that
“it’s okay if the State doesn’t have forensic or physical or scientific evidence.”
On appeal, the State conceded that, under Atkins and Stabb, the trial court abused
its discretion in giving that instruction. This Court agreed. Stating that a trial court abuses
its discretion in giving an anti-CSI effect instruction “where the defendant does not misstate
the law,” the Court concluded that defense counsel had not misstated the law and that the
trial court had abused its discretion in giving the instruction. 437 Md. at 540. But the
Court found that the error was harmless – a holding that we shall discuss later in this
opinion. See Part III.C of this opinion.
7
Two judges dissented, reasoning that the instruction in Robinson, taken in context,
functioned as a curative instruction when defense counsel’s opening statement recited a
litany of scientific evidence that the prosecution would not present and equated the lack of
such evidence with an absence of proof beyond a reasonable doubt. 436 Md. at 581-84
(Watts, J., dissenting).
9
Summary
The Court has never absolutely forbidden the use of an anti-CSI effect instruction
and has been careful to say that such an instruction is “not improper per se.” Indeed, both
this Court and the Court of Special Appeals have acknowledged that the instruction is a
correct statement of the law, as the prosecution is ordinarily not required to make its case
by any particular type of evidence. Atkins, 421 Md. at 447; Evans, 174 Md. App. at 570.
A related instruction given at most trials states that circumstantial evidence is just as good
as direct evidence.8
Still, the Court’s decisions reflect a skepticism about the existence of a “CSI effect”
and that question raises a concern whether the instruction is necessary – i.e., whether it is
a solution in search of a problem. More importantly, what matters is whether the content
of an anti-CSI effect instruction, viewed in the context of the evidence at trial, the other
instructions, and the parties’ arguments, has the effect of undermining or “neutering” the
critical (and constitutional) principle that the prosecution always bears the burden of proof
beyond a reasonable doubt. When an anti-CSI effect instruction has that effect, it violates
the defendant’s right to a fair trial, and the trial court abuses its discretion in giving the
instruction.
8
Maryland State Bar Association, Maryland Criminal Pattern Jury Instructions,
MPJI-Cr 3.01 (2d ed. 2012) (“The law makes no distinction between the weight to be given
to either direct or circumstantial evidence. No greater degree of certainty is required of
circumstantial than of direct evidence.”); 1 David E. Aaronson, Maryland Criminal Jury
Instructions and Commentary (2018) §2.02 (“A conviction may rest on circumstantial
evidence alone, on direct evidence alone, or on a combination of circumstantial and direct
evidence. No greater degree of certainty is required when the evidence is circumstantial
than when it is direct.”).
10
This Court’s prior cases have held that an anti-CSI effect instruction crosses that
line when the trial court gives it preemptively before there is any “defense overreaching”
that suggests to the jury that the prosecution is required to present forensic evidence to bear
its burden of proof.9 Thus, the Court has viewed such an instruction as most appropriately
given as a curative instruction. In addition, because of the perceived danger that the
instruction could minimize the prosecution’s burden of proof, any such instruction must
also refer to the prosecution’s continuing burden to prove its case beyond a reasonable
doubt.
II
Background
This case arose from a home invasion of the apartment of a college student in
Salisbury on June 13, 2008. On August 18, 2008, the grand jury in the Circuit Court for
Wicomico County charged Mr. Taylor with first, third, and fourth-degree burglary,
attempted second-degree rape, robbery, second-degree assault, indecent exposure,
malicious destruction of property worth less than $500, and theft of property worth less
than $100.
Mr. Taylor’s trial took place in the Circuit Court on December 4, 2008. At the outset
of the trial, the State dismissed the attempted second-degree rape charge. During the trial,
9
This can be a problematic line for a trial court to draw. As a matter in the realm
of human endeavor, a prosecution case is never perfect. It is a common, and fair, defense
argument that something is missing from it. Whether that means there is a reasonable doubt
is up to the jury. But it can be a subtle and difficult thing for a court to decide when this
common defense argument amounts to “overreaching.”
11
the State presented the testimony of the victim concerning the invasion of her home and
the testimony of three police officers who investigated the incident. Mr. Taylor elected not
to testify and did not call any witnesses or introduce any exhibits.
A. The Trial
The Night of the Home Invasion
During 2008, the victim was a student at Salisbury University and lived in a ground
floor apartment in Salisbury. She testified that, on June 13, 2008, at approximately 1:00
a.m., she was about to go to bed and had just turned off the lights when she heard some
knocks on her front door. She turned on the living room light and an outside light. She
looked through a peephole in the door, but she did not see anyone. She then opened the
front door “just a crack.” She leaned out the door to see a naked man to her left
masturbating. Shocked, she immediately shut the door and, despite the man’s attempt to
push his way in, was able to lock it. She called 911. As the man began to bang on the
door, she remained on the line with the dispatcher and retrieved a knife from the kitchen.
According to the victim, the man eventually managed to push the door in, breaking
the locks, and entered the apartment. When he entered the apartment, the man was wearing
only a gray T-shirt around his neck. He pulled the T-shirt over the lower part of his face
for a few seconds, but then let go of it, revealing his face. The man did not say anything.
The victim testified that, once inside the apartment, the man alternately charged at
her and retreated while she screamed, ordering him to get out and warning him that the
police were on their way. She said that, at one point, the man “cornered” her in the doorway
to her bedroom. He came towards her and grabbed the arm in which she held the knife.
12
She was able to wrest her arm free and believed that the knife “made contact” with the man
without cutting him. The man then rifled through her book bag and surveyed other items
on the kitchen counter and a coffee table. He ultimately left the apartment with her purse
and wallet.
The victim testified that, although she did not know the man, she could see his face
clearly in the bright light of her living room (and possibly kitchen light) after the T-shirt
fell away from his face. She described the man as having a chubby face, with very
prominent cheekbones, “sunken in” eyes, and light facial hair of a couple days’ growth.
The police arrived shortly after the man left the apartment. In her testimony, the
victim estimated that the entire encounter lasted three or four minutes. The 911 call, which
began shortly before the man entered the apartment and ended after the police arrived,
lasted one minute and twenty seconds. A recording of the 911 call was introduced into
evidence and played for the jury.
The police officer who first responded to the 911 call testified that he observed
“approximately eight golf ball sized dents” in the front door of the apartment and that it
appeared that the dead bolt on the door had been separated from the door by an impact
from the outside. The officer observed the knife that had been wielded by the victim, but
he did not process it as evidence or take it for testing because, according to the officer, the
victim did not tell him that it had touched her assailant. The officer observed cigarette
butts near the front stoop of the apartment, but he did not take them as evidence because
the victim herself was a smoker. The officer had been told that other officers saw a T-shirt
13
and sneakers in a field near the apartment, but he did not believe that those items had been
collected as evidence.
Subsequent Investigation and Identification of Mr. Taylor
The detective who was assigned to be the lead investigator in the case testified that
he learned that the apartment door had not been tested for fingerprints before it was
replaced by a new door shortly after the home invasion. Later on the day of the incident,
he located the door elsewhere in the apartment complex, confirmed that there were several
golf ball sized dents in it, and dusted the handle and upper part of the door for fingerprints
without success. He said that he did not take the victim’s knife because it was his
understanding that the assailant had not touched it. In addition, he also testified that the T-
shirt and shoes seen in the field were not collected.
Approximately one month after the incident, another detective with the Salisbury
Police Department presented the victim with a photo array and asked her whether the man
who had exposed himself to her and robbed her appeared in any of the photographs. She
selected Mr. Taylor’s photograph within a few seconds and told the detective that she was
positive that he was the person who had invaded her home. In her testimony at trial, the
victim again identified Mr. Taylor as the man who had invaded her apartment, but she
noted that he looked a little different in that his hair had grown out, his facial hair was
thicker, and he appeared to have lost some weight.
Jury Instructions, Closing Argument, and Deliberations
The trial testimony was completed during the morning of the trial, and the jury was
dismissed for a lunch recess. While the jury was out of the courtroom, the trial judge and
14
counsel briefly discussed the jury instructions that the judge would give prior to closing
arguments. At the end of that discussion, the trial judge advised counsel that “I will
probably give an instruction, which I have given in the past because I believe it has been
generated by the evidence, and perhaps will be argued by [defense counsel] concerning
scientific evidence. Or lack thereof.” Neither Mr. Taylor nor the State responded to the
judge’s statement.
That afternoon, after the jury had returned, the court instructed the jury. After
providing general instructions on the burden of proof, presumption of innocence, the
difference between evidence and argument, the right of the defendant to remain silent, and
general considerations for evaluating testimony, the court specifically addressed
eyewitness identification testimony:
You have heard evidence that prior to this trial a witness identified the
Defendant by what’s known as photographic array. It is for you to determine
the reliability of any identification and give it the weight you believe it
deserves. The identification of a defendant or 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.
You must, however, examine the identification with great care.
Immediately following that instruction, the court gave its “scientific evidence” instruction
which, in its entirety, was as follows:
There is no legal requirement that the State offer scientific evidence as a part
of its case, such as DNA, fingerprinting, blood typing, fiber analysis, hair
follicle analysis, or anything of that nature.
As is evident, unlike the instruction given in the case law outlined in Part I of this opinion,
this was a briefer version of an anti-CSI effect instruction that lacked the introductory
sentences that tell the jury to base its decision on the evidence “or lack of evidence” and
15
the concluding sentence relating the instruction to the prosecution’s burden of proof
beyond a reasonable doubt. This instruction also gave greater detail as to the types of
evidence that the State is not required to present.
After giving its anti-CSI effect instruction, the court discussed the concept of intent,
as distinct from motive, and finally reviewed the elements of each of the charges against
Mr. Taylor.
At the conclusion of the court’s instructions, the trial judge asked counsel whether
they had any “additions or exceptions.” Defense counsel excepted to the court’s anti-CSI
effect instruction, stating “Your Honor, I would just except to the Court’s scientific
evidence instruction.”10 The court replied “All right” and turned to the prosecutor, who
then excepted to the instruction concerning the elements of the robbery charge. Although
the trial judge did not explicitly deny either party’s exception, he effectively did so in not
providing any further instruction to the jury prior to closing argument.
In closing argument, defense counsel stressed that the only evidence linking Mr.
Taylor to the incident was the identification made by the victim, who had only a little more
than a minute to observe her assailant. While acknowledging that there was no requirement
that the State present DNA evidence, defense counsel observed that there was no evidence
apart from the identification to corroborate that Mr. Taylor was involved in the crime. In
rebuttal argument, the prosecutor also briefly alluded to the absence of DNA and
10
The anti-CSI effect instruction was the only instance in which the trial court
referred to “scientific evidence” in its instructions.
16
fingerprint evidence, arguing that any such evidence was unlikely to be found as a result
of the incident.
After deliberating for an hour, the jury sent the court a note stating that it was
“evenly split” as to whether to find Mr. Taylor guilty or not guilty and asking whether a
hung jury would be acceptable. In response, the court gave a version of a modified Allen
charge11 without directly answering whether a hung jury would be acceptable. It sent the
jury back to the jury room for further deliberations.
The jury returned approximately two hours later with a verdict finding Mr. Taylor
guilty of all of the charges against him – burglary in the first, third, and fourth degrees,
robbery, second-degree assault, indecent exposure, malicious destruction of property worth
less than $500, and theft of property worth less than $100.
Sentencing
Before it dismissed the jury, the court immediately sentenced Mr. Taylor to 17 years
imprisonment for first-degree burglary, 10 years for robbery, and three years for indecent
exposure. The sentences were to run consecutively, for a total of 30 years imprisonment.
The court merged the remaining convictions for purposes of sentencing.12 The court
11
A modified Allen charge, as approved by this Court, encourages jurors who have
indicated a lack of unanimity to continue to deliberate and reconsider their respective
positions in light of the views of other jurors while not surrendering individual honest
convictions. See Armacost v. Davis, 462 Md. 504, 519-20 n.9 (2019). The trial court’s
modified Allen charge in this case is set forth verbatim in the opinion of the Court of Special
Appeals. 236 Md. App. 397, 445-46 (2018).
12
The court merged the convictions on the two lesser burglary counts into the
conviction for first-degree burglary, and merged the convictions for assault, theft, and
malicious destruction of property into the robbery conviction.
17
advised Mr. Taylor of his right to pursue an appeal to the Court of Special Appeals and his
right to seek review of his sentence by a three-judge panel of the Circuit Court. Mr.
Taylor’s attorney advised him on the record that he would “file the appropriate paperwork
on [his] behalf.”
B. The Belated Direct Appeal
No appeal was timely filed on Mr. Taylor’s behalf. Almost eight years later, in June
2016, Mr. Taylor filed a pro se petition for postconviction relief, alleging that his trial
attorney had provided ineffective assistance of counsel by failing to file a notice of appeal
and an application for review of his sentence by a three-judge panel. The State agreed that
Mr. Taylor was entitled to relief, and he was permitted to pursue a belated appeal to the
Court of Special Appeals.
The Court of Special Appeals affirmed Mr. Taylor’s convictions. Taylor v. State,
236 Md. App. 397 (2018). Among the issues raised by Mr. Taylor in the intermediate
appellate court was whether the trial court had erred by giving its anti-CSI effect
instruction.13 The Court of Special Appeals concluded that the trial court had erred in
giving the anti-CSI effect instruction, but that the error was harmless.
Mr. Taylor filed a petition for a writ of certiorari on several issues, including the
anti-CSI effect instruction. Pertinent to that issue, the State filed a conditional cross-
13
Before the Court of Special Appeals, Mr. Taylor also argued that the trial court
had coerced a verdict in giving its version of the modified Allen charge and that the trial
court had impermissibly considered juvenile matters and unproven charges in fashioning a
sentence more severe than that recommended under the State’s sentencing guidelines. 236
Md. App. at 444-56. Neither issue is before us.
18
petition for certiorari, raising the questions whether Mr. Taylor had adequately preserved
the issue in the trial court and whether it was appropriate for the Court of Special Appeals
to consider post-trial case law on the propriety of an anti-CSI effect instruction in deciding
the issue in Mr. Taylor’s case. We granted Mr. Taylor’s petition with respect to the anti-
CSI effect instruction, as well as the State’s cross-petition.14
III
Discussion
Rearranging the issues raised by the parties in a logical order of decision, we address
the following questions:
1. Whether Mr. Taylor preserved his objection to the anti-CSI effect instruction.
14
This appeal found its way to this Court by a more convoluted route than is usually
the case. Mr. Taylor filed his initial petition for a writ of certiorari in May 2018. The
Court granted that petition and the State’s cross-petition in July 2018, but also added its
own question whether there was appellate jurisdiction to consider Mr. Taylor’s belated
appeal. Two weeks later, the Court dismissed the petition as improvidently granted and
also denied a subsequent motion for reconsideration, with two judges opining in dissent
that there was no appellate jurisdiction because the belated appeal had been granted by the
circuit court by a “consent order” in which Mr. Taylor waived his right to pursue any
further postconviction relief, without the circuit court holding a hearing or ruling on the
merits of the postconviction petition, as required by the Maryland Rules.
This Court subsequently held, in Rosales v. State, 463 Md. 552 (2019), that a failure
to file an appeal within the time limit set forth in the Maryland Rules, while ordinarily a
basis for dismissal of the appeal, does not divest an appellate court of jurisdiction to hear
the appeal. Subsequently, Mr. Taylor sought to re-open postconviction proceedings in the
Circuit Court. In December 2019, the Circuit Court re-opened the postconviction
proceedings and found that ineffective assistance of counsel had deprived Mr. Taylor of
the opportunity to have this Court consider his petition for certiorari. As relief, it
authorized him to file a belated petition for writ of certiorari with this Court. In March
2020, we granted Mr. Taylor’s new petition to the extent indicated in the text, as well as
the State’s cross-petition.
19
2. Whether, under the law that applies in this belated appeal, the trial court abused
its discretion when it gave the anti-CSI effect instruction.
3. If the trial court erred in giving the anti-CSI effect instruction, whether that error
was harmless.
For the reasons set forth below, we hold that: (1) Mr. Taylor sufficiently preserved
his objection to the anti-CSI effect instruction; (2) the trial court abused its discretion in
giving its anti-CSI effect instruction in the circumstances of this case; and (3) that abuse of
discretion was not a harmless error.
A. Preservation
The Maryland Rules require that a party make a contemporaneous objection to a
jury instruction to preserve an argument that the instruction was erroneous. In particular,
Rule 4-325(e) states, in pertinent part, that “[n]o party may assign as error the giving [of]
… an instruction unless the party objects on the record promptly after the court instructs
the jury, stating distinctly the matter to which the party objects and the grounds of the
objection.”15 See also Maryland Rule 2-520(e) (stating similar standard for objections to
jury instructions in civil jury trials). The purpose of the rule is to give the trial court an
opportunity to correct its charge to the jury if it believes a correction is necessary in light
of the objection. Gore v. State, 309 Md. 203, 208-09 (1987). This Court has recognized
15
The rule applicable to criminal trials also provides that, even if there is no
objection, an appellate court may “take cognizance of any plain error in the instructions,
material to the rights of the defendant.” Maryland Rule 4-325(e). Because we hold that
Mr. Taylor’s objection was preserved, we need not consider whether plain error review
would be appropriate in this case.
20
that a cryptic objection “substantially complies” with the last requirement of the rule – that
the objection states the grounds of the objection – if “the ground for objection is apparent
from the record.” Id. at 209;16 see also Watts v. State, 457 Md. 419, 426 (2018).
At the same time, if an objection is made to a jury instruction, and no grounds are
stated, the trial judge is not required to ask the grounds for the objection. In addition, if
the trial judge overrules a jury instruction objection that lacks a stated basis, substantial
compliance with Rule 4-325(e) is not presumed on appeal. A jury instruction exception
without a stated basis merely opens the door to the question whether the objection
substantially complied with the rule – a requirement that is only satisfied if the trial judge
can reasonably infer the grounds for the objection based on the overall context in which
the objection was made.
The State asserts that Mr. Taylor failed to adequately preserve an objection to the
anti-CSI effect instruction for appellate review because, although Taylor’s counsel stated
an exception, he did not specify the grounds of the objection and it was not otherwise
apparent under the circumstances. Thus, the State concludes, that objection did not strictly
comply – or even “substantially comply” – with that requirement of Rule 4-325(e).
As recounted above, during a recess in the trial, the trial judge advised counsel that,
in light of the lack of “scientific evidence” in the case and the likelihood that defense
16
The Gore decision also recognized an exception to the requirement that the
objection be made “after the court instructs the jury” if renewal of a previously-expressed
objection would be futile or useless. 309 Md. at 209. There is no need to consider that
exception here as Mr. Taylor’s counsel did register his objection after the court instructed
the jury.
21
counsel would focus on that fact in closing argument, he would sua sponte include an
instruction on that subject that he had given in other cases. The trial judge did not preview
the precise language he had in mind. Neither counsel reacted to that information at that
time. The trial judge followed through by giving his version of an anti-CSI effect
instruction, which advised the jury that the State was not required to “offer scientific
evidence” to prove its case – the only mention of “scientific evidence” in the instructions.
At the conclusion of the instructions, defense counsel excepted to the “scientific evidence
instruction” without further elaboration, and the trial judge responded “All right.”
There is no question that the objection registered by defense counsel was timely –
it came immediately after the court instructed the jury – and that the objection stated
distinctly the matter to which the objection pertained – the anti-CSI effect instruction that
referred to “scientific evidence.” Mr. Taylor concedes that his counsel did not state specific
“grounds” for the objection. Thus, the issue is whether the ground for the objection was
apparent from the record such that the purpose of Rule 4-325(e) was served – i.e., whether
the trial court had sufficient notice and an opportunity to correct its instructions in light of
the objection.
This Court recently analyzed a similar issue in Watts. In that case, defense counsel
made a timely objection to the trial court’s instruction concerning an assault charge.
Defense counsel stated that there might not be a unanimous verdict on that count as “six
jurors could go with one theory, six could go with another.” The court responded by saying
“Okay. All right. Thank you. ... Exceptions noted.” 457 Md. at 424-25. This Court held
that the objection substantially complied with Rule 4-325(e), observing that the trial judge
22
had noted the objection and had not expressed any lack of clarity about the nature of the
objection. Id. at 429. The Court acknowledged “that there is ‘some play in the joints’ in
determining whether an issue has been preserved” and stated that “[i]f the record reflects
that the trial court understands the objection and, upon understanding the objection, rejects
it, this Court will deem the issue preserved for appellate review.” Id. at 428; see also
Sergeant Co. v. Pickett, 283 Md. 284, 290 (1978) (applying similar standard regarding
objection to jury instruction in civil jury trial and finding substantial compliance with that
rule “[o]nce the trial court had signified that it comprehended the precise point being
asserted, but nevertheless rejected it out-of-hand”).17
As to whether the trial court in Mr. Taylor’s case would have understood the basis
for an objection to an anti-CSI effect instruction, there is a strong presumption that trial
judges know the law. State v. Chaney, 375 Md. 168, 181 (2003). At the time of the trial
of Mr. Taylor in 2008, and presumably at the time the same trial judge had given the anti-
CSI effect instruction in earlier trials, the only Maryland law on the propriety of such an
instruction was the opinion of the Court of Special Appeals in Evans. As outlined above,
in that case, the intermediate appellate court had stressed that an anti-CSI effect instruction
should be given in conjunction with a reference to the prosecution’s burden of proof
17
In Pickett, the Court held that a party had preserved an objection to the absence
of an instruction on the “avoidable consequences” rule of damages in contract actions when
counsel simply stated “[a]nd [proposed jury instruction number] ten, unavoidable (sic)
consequences.” The Court reasoned that the reference to “unavoidable consequences,”
coupled with a reading of the proffered instruction, was sufficient to identify for the trial
judge “the nature and ground of the objection.” 283 Md. at 289.
23
beyond a reasonable doubt and cautioned that a lack of clarity on that score would
effectively relieve the State of its burden of proof.
Apart from the presumption that a trial judge knows the law, it is self-evident that
an instruction about what evidence the State need not present relates to the burden of proof
borne by the prosecution and to the evidence that may support a conclusion that the burden
has been satisfied. It is also evident that the trial judge in Mr. Taylor’s case understood
that relationship. When the trial judge first informed counsel that he would sua sponte give
an anti-CSI effect instruction, he explained that he felt it appropriate in response to an
anticipated defense argument that the prosecution had failed to meet its burden due to
“scientific evidence … or the lack thereof.” Moreover, the instruction followed an
instruction about whether the identification of Mr. Taylor by the victim could alone satisfy
the reasonable doubt standard. Accordingly, the trial judge would have understood that a
defense objection to the anti-CSI effect instruction concerned whether it undermined the
reasonable doubt standard. Finally, the trial judge expressed no confusion about the nature
of the defense objection, but simply said “All right.” As in Watts, “[i]f the trial judge
lacked clarity about counsel’s objection, the record does not reflect it.” 457 Md. at 429.
Here, the grounds for defense counsel’s objection to the anti-CSI effect instruction
were apparent to the trial court and, given that defense counsel satisfied the other
requirements of Maryland Rule 4-325(e), the objection substantially complied with that
rule. We thus agree with the Court of Special Appeals that Mr. Taylor’s objection to the
instruction was preserved for appellate review.
24
B. Whether the Anti-CSI Effect Instruction was an Abuse of Discretion
An appellate court reviews a trial court’s decision to give a particular jury
instruction for abuse of discretion. Hall, 437 Md. at 539. A trial court abuses its discretion
if it commits an error of law in giving an instruction. Harris v. State, 458 Md. 370, 406
(2018).
The version of an anti-CSI effect instruction given in Mr. Taylor’s case was
deficient in comparison to the instruction given in the cases outlined in Part I of this
opinion. The instruction given in all of those cases consisted of a sentence reciting that the
State did not have to prove its case through specific scientific techniques, bracketed by
several other sentences that emphasized that the State bore the burden of proof beyond a
reasonable doubt and that the jury should take account of the evidence or “lack of evidence”
in deciding whether the State met that burden. In contrast, the anti-CSI effect instruction
in this case consisted of a single sentence advising the jury that the State was not required
to offer scientific evidence and included a list of examples of evidence that the State need
not present.
This Court has warned that, in many circumstances, even the more elaborate
instruction used in the cases described in Part I of this opinion may compromise
communication of the concept of reasonable doubt. Accordingly, the Court has
admonished that an anti-CSI effect instruction should be used only as a curative instruction
in response to defense “overreaching.” The instruction in this case was preemptive, not
curative. In this case, the trial judge announced his intention to give an anti-CSI effect
25
instruction sua sponte in anticipation of a potential defense argument, not in response to
an argument already made.
In fact, there was no need for a curative instruction. At Mr. Taylor’s trial, defense
counsel neither misstated the law nor overemphasized the lack of forensic evidence. In his
opening and closing statements, defense counsel briefly pointed to the lack of forensic
evidence to spotlight that the lone evidence tying Mr. Taylor to the incident was the
victim’s identification of him as the assailant whom she had never seen before and whom
she had observed only briefly on the night in question – an identification made well after
that encounter (one month later in the case of the photo array and several months later in
the case of the in-court identification). Similarly, defense counsel’s cross-examination of
the law enforcement officers who testified at trial simply explored the other tangible
evidence at the scene that was neither collected nor examined. Although the defense
argued that the absence of evidence corroborating the identification raised reasonable
doubt, the defense never suggested that scientific evidence was required to convict Mr.
Taylor. In short, this was not a case in which the defense “overreached” by putting “undue
emphasis” on the lack of forensic evidence. Stabb, 423 Md. at 471, 473.
The State appropriately does not argue that the instruction given in this case passes
muster under this Court’s decisions in Atkins, Stabb, and later decisions. Rather, it argues
that the Atkins and Stabb decisions “created an entirely new framework” for evaluating an
anti-CSI effect instruction. Based on that premise, it asserts that those cases changed
Maryland common law and should be applied only prospectively – i.e., only to trials
26
occurring after those decisions were issued – and therefore not to Mr. Taylor’s trial.18 As
a fallback position, the State argues that “at best” the law created by those decisions should
apply only to cases pending on direct appeal when those decisions were issued in 2011 and
that this belated direct appeal does not fall into that category. In the State’s view, we should
ignore the 2011 decisions and evaluate Mr. Taylor’s argument with respect to the anti-CSI
effect instruction given in his case “as if it were the Winter of 2008” when only Evans had
been decided.19
This question only matters if we accept the State’s premise that Atkins and Stabb so
altered the standards for evaluating anti-CSI effect instructions that the instruction given
here, though improper now, would have been permissible in 2008. Otherwise, the State’s
question is hypothetical.
We do not accept the State’s premise that an appellate court promptly reviewing the
truncated anti-CSI effect instruction given in this case would have found it proper under
18
We note, however, that in Robinson and Hall this Court has already applied the
Atkins and Stabb decisions to instructions given at trials before the latter decisions were
issued, as has the Court of Special Appeals. E.g., Carrero-Vasquez v. State, 210 Md. App.
504, 534-35 (2013) (anti-CSI effect instruction given in a 2011 trial that preceded Atkins
and Stabb decisions); Allen v. State, 204 Md. App. 701 (2012) (same); Samba v. State, 206
Md. App. 508, 513, 531 (2012) (anti-CSI effect instruction given at 2010 trial).
19
Postconviction cases often involve consideration of the state of the law at the time
of a defendant’s trial rather than at the time that the postconviction case is decided. That
is because postconviction cases frequently concern whether defense counsel rendered
ineffective assistance at trial. That standard can often only be fairly assessed in light of the
law that existed at the time of trial. See, e.g., Maryland v. Kulbicki, 577 U.S. 1 (2015)
(defense counsel’s failure to attack at trial the use of a forensic technique that was
discredited a decade later was not ineffective assistance of counsel as the particular forensic
technique had enjoyed wide acceptance for many years prior to the trial). This is not such
a case. Mr. Taylor has already litigated and obtained relief in his postconviction case. The
relief is this belated appeal which is, in fact, a very delayed direct appeal.
27
Evans. As discussed above, the Evans court did not endorse the use of an anti-CSI effect
instruction in all cases. Instead, the court examined the circumstances of the trial of the
case before it and described circumstances that might warrant an anti-CSI effect
instruction, if properly phrased. In Evans, the court found the instruction was “warranted”
in the circumstances of that case as a result of defense counsel’s “robust and vehement
closing arguments” concerning the investigators’ “failure to employ audio or video
surveillance equipment and the lack of any other investigative or scientific evidence.”
However, the court noted that, in advising that the prosecution need not employ specific
investigative techniques, the instruction in that case had stressed that absence of forensic
evidence did not matter “as long as the evidence adduced supports a finding of guilt beyond
a reasonable doubt.” 174 Md. App. at 570. And the Evans court cautioned that “such an
instruction will run afoul of the prohibition against relieving the State of its burden [of
proof beyond a reasonable doubt] where the instruction is predominant in the overall
instructions and its relation to the reasonable doubt standard unclear.” Id. at 570-71.
In contrast to the record before the court in Evans, the record in this case does not
reflect “robust and vehement arguments” by the defense as to the lack of forensic evidence.
Indeed, in closing argument, defense counsel himself told the jury that the State did not
have to produce forensic evidence to establish proof beyond a reasonable doubt. Moreover,
the anti-CSI effect instruction in this case was not accompanied by any explanation as to
how the jury was to relate it to the State’s burden of proving guilt beyond a reasonable
doubt. The intermediate appellate court in Evans believed it was important that an anti-
CSI effect instruction be given “in conjunction with the explication of the State’s burden
28
to prove the defendant guilty beyond a reasonable doubt.” 174 Md. App. at 571. That did
not happen here.20 Even an appellate court applying the Evans standard alone would likely
find the instruction in this case wanting. See Samba v. State, 206 Md. App. 508, 533 (2012)
(concluding that an anti-CSI effect instruction was defective in comparison to the
instruction given in Evans because it failed to advise the jury to consider the “lack of
evidence” in determining whether there was reasonable doubt). Thus, had Mr. Taylor’s
counsel pursued an appeal in 2008, and had the Court of Special Appeals decided it before
2011, that court’s application of the standard it had adopted in Evans would very likely
have resulted in a reversal of Mr. Taylor’s conviction.
Finally, we note that Mr. Taylor’s trial was nearly contemporaneous with those in
Atkins and Stabb. (The trial in Atkins took place three months before Mr. Taylor’s trial,
and the trial in Stabb took place four months after Mr. Taylor’s). Had a timely direct appeal
been filed on Mr. Taylor’s behalf, that appeal would have wended its way through the
Court of Special Appeals to this Court on a similar timeline to the other two cases. The
Court would likely have applied the analysis that it used in Atkins and Stabb. The only
difference might have been that a decision called Taylor might have displaced Atkins or
Stabb as the leading 2011 decision on anti-CSI effect instructions.
20
The State points to other places in the trial court’s instructions besides the anti-
CSI effect instruction that refer to reasonable doubt, but the most proximate mention of
reasonable doubt – the identification instruction – told the jury that the State could satisfy
its burden through a single witness.
29
The instruction given at Mr. Taylor’s trial was erroneous, whether assessed under
Atkins, Stabb, and subsequent cases or under Evans alone. The retroactivity question that
the State raises is thus hypothetical, and so we do not reach it.21
We agree with Court of Special Appeals that the trial judge abused his discretion by
giving what amounted to a preemptive anti-CSI effect instruction that was not in
conjunction with a reiteration of the reasonable doubt standard. The question then is
whether the error was harmless or not.
C. Harmless Error?
The State argues that any error in the anti-CSI effect instruction was harmless. The
Court of Special Appeals agreed with the State on that score. We do not.
An error by a trial court is harmless only if the reviewing court “is able to declare a
belief, beyond a reasonable doubt, that the error in no way influenced the verdict.” Dorsey
v. State, 276 Md. 638, 659 (1976); see also Hall, 437 Md. at 540-41 (anti-CSI effect
instruction was harmless error when it was “of no significance to the verdict”). The Court
of Special Appeals noted that standard but, when applying it, focused on the fact that the
identification of Mr. Taylor by the victim was “sufficient unto itself” to support a verdict
of guilty and that forensic evidence was “not essential” to a conviction of Mr. Taylor. 236
Md. App. at 443-44.
21
In its opinion in this case, the Court of Special Appeals engaged in a thorough
analysis of the nature of a belated appeal and the case law concerning anti-CSI effect
instructions and, consistent with one of its past anti-CSI effect decisions that had also
analyzed the issue, rejected the State’s argument that the 2011 cases would not apply to
Mr. Taylor’s appeal. 236 Md. App. at 422-28; see also Allen v. State, 204 Md. App. 701,
714-21 (2012).
30
The standard for harmless error sets a higher bar than whether there was sufficient
evidence to support the conviction. Dionas v. State, 436 Md. 97, 116-17 (2013) (a test of
whether there was evidence “otherwise sufficient” to support the verdict is a
“misapplication of the harmless error test”); Devincentz v. State, 460 Md. 518, 561-62
(2018) (same). The question is whether the error could have influenced the verdict, not
whether there is evidence to support the verdict. The fact that there was sufficient evidence
for a jury to convict means only that the trial court properly denied the defense motion for
a judgment of acquittal at the close of the evidence. It does not necessarily mean that the
trial court’s error “in no way influenced the verdict” – or that an appellate court can say,
beyond a reasonable doubt, that it did not do so.
In arguing harmless error to us, the State does not rely on the sufficiency of the
evidence to support Mr. Taylor’s conviction.22 Instead, the State asserts that the record
demonstrates that any attempt to develop forensic evidence in this case would have been
futile. For example, the State contends that a forensic examination of household surfaces
or items possibly touched by the assailant would likely have yielded only the fingerprints
or DNA of the victim, not the assailant. That supposition may well be correct and might
appropriately have been elicited in testimony and argued to the jury. But it does not mean
that we can say beyond a reasonable doubt that the erroneous anti-CSI effect instruction in
no way influenced the verdict.
22
In its brief, the State urges that, even if the intermediate appellate court misapplied
the harmless error test in its analysis, we should nonetheless hold that any error was
harmless based on the record of this case.
31
The State further suggests that the anti-CSI effect instruction in this case had
minimal impact because it consisted of a single sentence amid many other jury instructions.
As explained above, however, that single sentence lacked the critical cross-reference to the
reasonable doubt standard that appears in past anti-CSI effect instructions reviewed by this
Court. Moreover, the placement of the anti-CSI effect instruction may well have
exacerbated the error. A jury instruction that informed the jury that it could convict solely
on the basis of an identification by a single witness immediately preceded the anti-CSI
effect instruction that told the jury the prosecution did not need to offer scientific evidence.
The juxtaposition of the two instructions, especially without the ameliorative framing
sentences that appear in the anti-CSI effect instruction given in other cases, could have
further undermined the jury’s perception of the State’s burden of proof.
An instructive comparison can be made to the Hall decision, in which this Court
held that an erroneous anti-CSI effect instruction was harmless. Hall, 437 Md. at 540.
Defense counsel argued that the instruction was not harmless because the prosecution had
not introduced any photos of the defendant driving the victim’s car, any photos of the
victim’s injuries, or any recording of the victim identifying the defendant in a photo array.
However, in that case, proof of the defendant’s connection to the victim did not depend
solely on an identification made by the victim. The defendant himself also testified about
meeting the victim and driving the victim’s car. In light of that testimony, the anti-CSI
effect instruction could not have influenced the jury to minimize an absence of evidence
linking the defendant to the victim and so the Court concluded, beyond a reasonable doubt,
that it was “of no significance” to the verdict. Id. at 540-41.
32
In contrast to the defendant in Hall, Mr. Taylor never admitted to any involvement
in the circumstances of the offense in this case. He was connected to the home invasion
only by his identification by a single eyewitness, who likely had less than a minute to view
her assailant’s face, once uncovered, and who had never seen him before. The
identification, in the case of the photo array, occurred a month after the incident; the in-
court identification (during which the victim stated that Mr. Taylor looked “a little
different”) occurred six months afterwards. In similar circumstances, this Court has held
that an erroneous preemptive anti-CSI effect instruction “was not harmless [because it] was
compounded by the fact that the physical evidence to which it applied, the only evidence
other than testimony, was so critical to the case.” Robinson, 436 Md. at 563 n.4.
Finally, this Court has considered jury behavior during deliberations as a relevant
(though not decisive) factor in harmless error analysis. Dionas, 436 Md. at 111. The jury
at Mr. Taylor’s trial was evidently troubled as to whether the prosecution had met its burden
of proof in the case. The jury initially reported to the court that it was “evenly split” and it
only returned a guilty verdict after receiving a modified Allen charge and then deliberating
for an additional two hours.
In sum, this record does not establish beyond a reasonable doubt that the erroneous
instruction had no influence on the verdict.
IV
Conclusion
For the reasons set forth above, we hold that the trial court abused its discretion in
giving the anti-CSI effect instruction and that the error was not harmless.
33
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE
REMANDED TO THAT COURT FOR ENTRY OF AN ORDER VACATING
PETITIONER’S CONVICTIONS AND REMANDING THE CASE TO THE
CIRCUIT COURT FOR WICOMICO COUNTY FOR A NEW TRIAL.
COSTS TO BE PAID BY WICOMICO COUNTY.
34
Circuit Court for Wicomico County
Case No. 22-K-08-000665
Argued: October 2, 2020
IN THE COURT OF APPEALS
OF MARYLAND
No. 2
September Term, 2020
______________________________________
DEVON JORDAN TAYLOR
v.
STATE OF MARYLAND
______________________________________
Barbera, C.J.
McDonald
Watts
Hotten
Getty
Booth
Biran,
JJ.
______________________________________
Concurring Opinion by Biran, J.
______________________________________
Filed: April 23, 2021
I am pleased to join Judge McDonald’s well-written and persuasive Majority
opinion. Because Mr. Taylor is entitled to a new trial whether we apply the law relating to
anti-CSI jury instructions as it existed in 2008 or the law as it stands now, it undoubtedly
is a sound approach not to decide which law applies. However, there is no jurisprudential
bar to answering this important question, which the State presented in its conditional cross-
petition. I write separately to explain that I would reach this question, and that I would
adopt the Court of Special Appeals’ cogent analysis on the point. See Taylor v. State, 236
Md. App. 397, 422-28 (2018).
As the Majority opinion recognizes, the Court of Special Appeals “engaged in a
thorough analysis of the nature of a belated appeal and the case law concerning anti-CSI
effect instructions and, consistent with one of its past anti-CSI effect decisions that had
also analyzed the issue, rejected the State’s argument that the 2011 cases would not apply
to Mr. Taylor’s appeal.” Maj. Op. at 30 n.21.
I, too, would reject the State’s argument. My reasoning boils down to the fact that,
after Mr. Taylor was granted the right to file a belated appeal, his conviction was no longer
final. Thus, Mr. Taylor’s conviction is on direct review in this Court. As such, we should
apply the law as it exists today to the question of whether the trial court erred in giving the
anti-CSI jury instruction. See Taylor, 236 Md. App. at 427-28.
Circuit Court for Wicomico County
Case No. 22-K-08-000665
Argued: October 2, 2020
IN THE COURT OF APPEALS
OF MARYLAND
No. 2
September Term, 2020
______________________________________
DEVON JORDAN TAYLOR
v.
STATE OF MARYLAND
______________________________________
Barbera, C.J.
McDonald
Watts
Hotten
Getty
Booth
Biran,
JJ.
______________________________________
Dissenting Opinion by Watts, J., which Booth,
J., joins.
______________________________________
Filed: April 23, 2021
Respectfully, I dissent. I would hold that Devon Jordan Taylor, Petitioner, failed to
preserve a challenge to the “anti-CSI effect” jury instruction for appellate review. I would
not reach the merits or address harmless error and would affirm the Court of Special
Appeals’s judgment.
In this case, in objecting to the “scientific evidence instruction,” Taylor’s counsel
failed to comply either strictly or substantially with Maryland Rule 4-325(e).1 At trial,
when the circuit court, the prosecutor, and Taylor’s counsel were discussing which jury
instructions the circuit court would give, the circuit court stated: “I will probably give an
instruction, which I have given in the past because I believe it has been generated by the
evidence, and perhaps will be argued by [Taylor’s counsel] concerning scientific evidence.
Or lack thereof.” At that point, Taylor’s counsel said nothing about the circuit court’s plan
to give a jury instruction concerning scientific evidence. The circuit court gave the
following jury instruction, commonly called an “anti-CSI effect instruction”: “There is no
legal requirement that the State offer scientific evidence as a part of its case, such as DNA,
fingerprinting, blood typing, fiber analysis, hair follicle analysis, or anything of that
nature.” After the circuit court instructed the jury, the following exchange occurred:
THE COURT: Any additions or exceptions?
[TAYLOR’S COUNSEL]: We would except, Your Honor. May we
approach?
THE COURT: Yes.
1
Maryland Rule 4-325(e) provides in relevant part that “[n]o party may assign as
error the giving or the failure to give an instruction unless the party objects on the record
promptly after the court instructs the jury, stating distinctly the matter to which the party
objects and the grounds of the objection.”
(Counsel and Defendant approached the bench and the following occurred:)
[TAYLOR’S COUNSEL]: Your Honor, I would just except to the Court’s
scientific evidence instruction.
THE COURT: All right.
(Bolding omitted). That is the extent of Taylor’s counsel’s challenge or exception to the
instruction. Taylor’s counsel failed to identify any reason whatsoever for the exception—
he merely stated that he excepted to the “scientific evidence instruction” and failed to
identify any ground for the exception. It is clear that Taylor’s counsel failed to strictly or
substantially comply with Maryland Rule 4-325(e) because he failed to provide any reason
at all for excepting to the circuit court giving a scientific evidence instruction and there is
no indication whatsoever in the record that the trial court understood the basis for the
objection.
Nothing in the record makes clear the ground for Taylor’s counsel’s exception to
the instruction. In other words, this is not a scenario where “the ground for objection is
apparent from the record[.]” Watts v. State, 457 Md. 419, 426, 179 A.3d 929, 933 (2018)
(citation omitted). There is no hint in the record that Taylor’s counsel was somehow
implicitly relying on dicta from Evans v. State, 174 Md. App. 549, 571, 922 A.2d 620, 633,
cert. denied, 400 Md. 648, 929 A.2d 890 (2007), as the ground for the exception. In Evans,
the Court of Special Appeals concluded that the “anti-CSI effect” jury instruction was a
correct statement of the law, that it was not fairly covered by the other jury instructions,
and that it was applicable to the circumstances of the case because, during the defendant’s
closing argument, his counsel made “robust and vehement” assertions regarding the lack
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of any scientific evidence produced by the State. Id. at 570, 922 A.2d at 632. In dicta, the
Court of Special Appeals observed that “the preferable practice” would be for a trial court,
immediately after giving an “anti-CSI effect” jury instruction, to reiterate “the State’s
burden to prove the defendant guilty beyond a reasonable doubt.” Id. at 571, 922 A.2d at
633.
In this case, Taylor’s counsel never once referred to Evans—much less stated or
implied that in excepting to the instruction he was relying on interpretation of dicta from
the case as a basis for an objection. The circumstance that there is dicta in a case that could
support a defendant’s objection to a jury instruction certainly does not mean that the basis
for objection is apparent from the record, particularly where the defendant’s counsel never
even mentioned the existence of the case. Certainly, where a defendant’s counsel does
nothing to call a trial court’s attention to a particular appellate opinion, there is nothing in
the record—apparent or otherwise—that indicates that the defendant’s counsel wanted the
trial court to consider the holding in the opinion as the basis for an objection and even more
certainly, there is nothing in the record to indicate that the defendant’s counsel’s objection
was based on dicta from the opinion.
The principle that a trial court is presumed to know the law is not applicable here.
See Harris v. State, 458 Md. 370, 412, 182 A.3d 821, 846 (2018). The principle simply
means that, absent evidence to the contrary, an appellate court will presume that a trial
court knew and correctly applied the law. This principle does not in any way stand for the
proposition that, because a trial court is presumed to know the law, a trial court is also
presumed to know the basis for an objection where a defendant’s counsel does not give
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one, i.e., the principle does not stand for the proposition that a trial judge is clairvoyant.
Equally important, for a defendant to preserve a challenge to a jury instruction by
substantially complying with Maryland 4-325(e), it is the record that must make apparent
the ground for the objection to the jury instruction—not the trial court’s presumed
knowledge of the law. If it were otherwise—i.e., if the trial court’s presumed knowledge
of the law could substitute for a defendant providing a ground for an objection or exception
to a jury instruction—a defendant would never need to provide such grounds, and the mere
act of objecting or excepting would always be sufficient to substantially comply with
Maryland Rule 4-325(e).
Moreover, at the time of the trial in this case, “anti-CSI effect” instructions were
permitted and the circuit court could not have been presumed to know the basis for Taylor’s
counsel’s objection. Although it is now clear that “anti-CSI effect” jury instructions are
“disfavored[,]” Harris, 458 Md. at 390, 182 A.3d at 833, that was not the case before this
Court first addressed “anti-CSI effect” jury instructions in 2011 in Atkins v. State, 421 Md.
434, 437-38, 26 A.3d 979, 980 (2011). Hindsight is 20/20, and what is known and obvious
today about “anti-CSI effect” jury instructions was anything but obvious before this Court
decided Atkins. Between 2007 and 2011, at the time when the trial in this case occurred,
the Court of Special Appeals’s holding in Evans, 174 Md. App. at 570-71, 922 A.2d at
632-33, indicated that “anti-CSI effect” jury instructions were generally proper. Without
Taylor’s counsel expressly setting forth a ground for an exception to the “anti-CSI effect”
jury instruction, the basis for the exception could not have been apparent from the record.
In short, nothing about the presumption that trial courts are presumed to know the law gives
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rise to the inference that the circuit court must have understood the grounds for Taylor’s
counsel’s exception to the “anti-CSI effect” jury instruction. See Maj. Slip Op. at 23-24;
Taylor v. State, 236 Md. App. 397, 414-15, 182 A.3d 201, 211 (2018).
I do not agree that the circuit court “would have understood that a defense objection
to the anti-CSI effect instruction concerned whether it undermined the reasonable doubt
standard.” Maj. Slip Op. at 24. The circuit court’s statement that it would give the “anti-
CSI effect” jury instruction because Taylor’s counsel may have been planning to make an
argument regarding a lack of scientific evidence did not, in any way, indicate that the circuit
court knew the basis for Taylor’s counsel to object to the instruction. If anything, the
circumstance that the circuit court gave the jury instruction demonstrates that the circuit
court believed that doing so was appropriate and that it did not understand the basis for the
exception—i.e., the circuit court was of the view that there was no valid reason under
existing law (Evans) not to give the jury instruction.
Similarly, the circumstance that the circuit court gave the “anti-CSI effect” jury
instruction immediately after a jury instruction regarding whether identification of Taylor
by the victim was sufficient proof of guilt does not indicate that the circuit court had any
notion that the “anti-CSI effect” jury instruction could be perceived to undermine the
State’s burden of proof. Common sense would lead to the conclusion that the order in
which the circuit court gave the jury instructions does not establish that the grounds for
Taylor’s counsel’s exception to the “anti-CSI effect” jury instruction were apparent to the
court. In this case, the circuit court did not indicate in any way that it understood the
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grounds for the exception and there is no basis in the record for inferring that the court
understood as much.2
From my perspective, Taylor’s challenge to the “anti-CSI effect” jury instruction is
not preserved for appellate review. I agree with the Court of Special Appeals’s judgment
2
In my view, plain error review is not warranted in this case. Maryland Rule 4-
325(e) provides that “[a]n appellate court, on its own initiative or on the suggestion of a
party, may however take cognizance of any plain error in the instructions, material to the
rights of the defendant, despite a failure to object.” In Newton v. State, 455 Md. 341, 364-
65, 168 A.3d 1, 14 (2017), this Court addressed plain error as follows:
Plain error review is reserved for those errors that are compelling,
extraordinary, exceptional[,] or fundamental to assure the defendant of a fair
trial. Before we can exercise our discretion to find plain error, four
conditions must be met: (1) there must be an error or defect—some sort of
deviation from a legal rule—that has not been intentionally relinquished or
abandoned, i.e., affirmatively waived, by the [defendant]; (2) the legal error
must be clear or obvious, rather than subject to reasonable dispute; (3) the
error must have affected the [defendant]’s substantial rights, which in the
ordinary case means [that] he [or she] must demonstrate that it affected the
outcome of the [trial] court proceedings; and (4) the error must seriously
affect the fairness, integrity[,] or public reputation of judicial proceedings.
It is rare for the Court to find plain error. Indeed, we will do so only
when the error was so material to the rights of the [defendant] as to amount
to the kind of prejudice that precluded an impartial trial. We have found this
to be true of serious errors in jury instructions that “undermined a core value
of constitutional criminal jurisprudence.” Savoy[ v. State], 420 Md. [232,]
255, 22 A.3d 845[, 859] (error in reasonable doubt jury instruction); see State
v. Hutchinson, 287 Md. 198, 208, 411 A.2d 1035[, 1041] (1980) (failure to
instruct the jury that they could find the defendant not guilty); Squire v. State,
280 Md. 132, 133, 135, 368 A.2d 1019[, 1020] (1977) (jury instruction
placing the burden of proving self-defense on the defendant).
(Cleaned up). The alleged error in this case clearly does not rise to the level of qualifying
for plain error, i.e., it does not rise to the “compelling, extraordinary, exceptional[,] or
fundamental” level of plain error. Id. at 364, 168 A.3d at 14 (citation omitted). Simply
put, this is not one of the “rare” cases in which this Court should exercise plain error review.
Id. at 364, 168 A.3d at 14.
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affirming Taylor’s convictions, and would also affirm but for the reasons stated herein.
For the above reasons, respectfully, I dissent.
Judge Booth has authorized me to state that she joins in this opinion.
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