Beads v. State

MURPHY, J. In the Circuit Court for Baltimore City, a jury convicted Cyrus Lee Beads and Joseph Omar Smith, Petitioners, of several crimes against the person of three victims, as well as several related offenses, including use of a handgun in the commission of a crime of violence. The State’s evidence was sufficient to establish that Petitioners committed those offenses on June 7, 2005. Both Petitioners noted an appeal to the Court of Special Appeals. That Court consolidated the appeals, and affirmed the judgments of conviction in an unreported opinion.

Petitioners then filed a petition for writ of certiorari in which they requested that this Court address four questions: 1. Where two defendants with identical interests are jointly tried and where one defendant objects to remarks in closing argument that are equally damaging to both, should the objection of one defendant be deemed to preserve the issue as to both defendants, and, if it does not, should this Court recognize plain error? 2. Should the petitioners’ convictions be reversed in light of the prosecutor’s prejudicial remarks during closing argument when she (1) denigrated the role of defense counsel by, among other things, “cautioning]” the jury “that unlike the State, the Defense’s specific role in this case is to get their Defendants off’; (2) improperly appealed to the jury to protect the community by saying “enough”; and (3) introduced the specter of witness intimidation into the case by suggesting to the jury that a key witness had moved because she and her family had been threatened by one of the defendants despite the fact that there was no evidence to that effect in the record? ⁵ 3. Where the jury sent a note during deliberations which asked if it could have a tape of the testimony of a key witness and which asked if the same witness had given a recorded pre-trial statement, did the Court of Special Appeals err when it held that the trial court’s failure to advise the petitioners and their counsel about the note and to provide the jury with a response to the note was harmless error in light of the fact that the trial court told the jury, in response to a different note, that the jury had all of the evidence in the case? 4.

Where a witness testified three times that Mr. Smith had been incarcerated, did the Court of Special Appeals err when it held that a mistrial was not warranted because defense counsel had invited the error by asking the witness whether she knew Mr. Smith’s mother and when it held that any prejudice Mr. Smith suffered was minimal given the context of her testimony and the “strong evidence” against him? We granted that petition. 415 Md. 607 , 4 A.3d 512 (2010). For the reasons that follow, we answer “yes” to question 2 and question 4. In light of these answers, the issues presented in question 1 and question 3 are moot.

We hold that (1) the trial court erroneously overruled Petitioner Beads’ objections to improper prosecutorial argument, (2) the trial court erroneously concluded that the cross-examination of Petitioner Smith’s trial counsel “opened” the door to testimony that Smith had been incarcerated, and (3) because the trial court failed to take any corrective action in response to the improper arguments and inadmissible evidence, we are not persuaded beyond a reasonable doubt that these erroneous rulings were harmless. We shall therefore direct that these cases be remanded for a new trial. Background On June 7, 2005, an utterly senseless episode of violence occurred in front of 3832 Roland View Avenue in Baltimore City. During a gun battle, one or more persons fired shots into a crowd, killing Mr. Lawrence Johnson, and wounding two ⁶ other victims, Jeremy Drake and Ronald McCuteheon.

Although no one present at the scene of the shooting identified either Petitioner as the shooter, each Petitioner’s criminal agency was established by the testimony of two witnesses— Kelly Rae Miller, and Darren Buie—who observed and spoke with Petitioners when they entered Mr. Buie’s residence shortly after the shooting, as well as by ballistics evidence presented by a firearms examiner who testified that bullets recovered from the crime scene were fired by someone (1) using the very handgun, a 9 mm Glock, seized from a taxicab in which Petitioner Beads was riding, and (2) using a .38 caliber Smith and Wesson found to be “consistent with” the one seized from under a bed in which Petitioner Smith had been sleeping. The following transpired during the prosecutor’s opening statement: [Prosecutor]: Cyrus Beads and Joseph Omar Smith went to the 3800 block of Roland View Avenue and they went there hunting. They went there armed at night and they hid, and they ambushed these people who were standing around drinking and singing old Temptations songs, and as a result, Mr. Johnson, 44 years old, a father, a grandfather, a working man, a husband, someone who had nothing to do with the business that these men set out to take care of, is dead and today, ladies and gentlemen, it’s time for someone to say, “Enough. Enough.” [Counsel for Smith]: Objection.

THE COURT: Overruled. Petitioner Smith’s trial counsel moved for a mistrial after the Circuit Court overruled his objection to evidence that Petitioner Smith had been “incarcerated.” The opinion of the Court of Special Appeals includes the following discussion of this issue: At trial, Roslyn Peterson [the deceased victim’s wife] testified that on June 6th, the day before the shooting, she saw a blue station wagon at the bottom of her block. There were two men in the car, and one of them had a gun. Peterson ⁷ did not identify the men and could only testify that one of them had long plaits.

In an effort to demonstrate that Smith was not one of the two men Peterson saw in the car, defense counsel inquired as to whether she knew Smith and his mother. The following colloquy occurred: [Smith’s Counsel]: Do you know a woman by the name of Porscha Smith? [Smith’s Counsel]: Okay. I assume when you’re saying “he,” you’re referring to the gentleman, Joseph Omar Smith— [Peterson]: Exactly. [Smith’s Counsel]:—sitting next to me? [Peterson]: Yes. [Smith’s Counsel]: This is Porscha Smith’s son; is that correct? [Peterson]: Yes. [Smith’s Counsel]: You know him? [Peterson]: I didn’t know it was his (sic) son during the time. I guess, yes.

After I found out that that was his (sic) son—I haven’t seen him since he was a little boy. He was incarcerated. I hadn’t seen him since he came home. So I don’t know how he looked— [Smith’s Counsel]: Objection, Your Honor. [Peterson]:—after he came from incarcerated (sic).

THE COURT: Overruled. You opened it. You opened it. Overruled. [Peterson]: He was incarcerated.

I hadn’t seen him. THE COURT: Excuse me, ma’am. [Smith’s Counsel]: Objection. May we approach the bench? THE COURT: No. No. You opened it.

She gave you an answer. Now, ma’am, please only respond to the questions. No outbursts. I know how upset you are, but no outbursts.

Next question. [Smith’s Counsel]: Your Honor, may we approach? I would like to make a motion. ⁸ At that point, the parties approached the bench, and Smith moved for a mistrial. The court denied the motion, stating: I think that you opened up unwittingly, I think, a line of questioning with respect to how long has it been since she saw him. She said she knew him when he was a little boy— I don’t know how little—and hasn’t seen him since and she mentioned he was away, that he was incarcerated.

Now, I know that’s a little tenuous, but I don’t think it warrants a mistrial motion being granted. I’ll deny the motion. Immediately thereafter, counsel for Smith asked the court to strike Peterson’s testimony and instruct the jury to disregard it, but the court denied that request. The following transpired at the end of the prosecutor’s closing argument: [Prosecutor]: You’re now going to hear from the Defense attorneys, both of whom are fine attorneys.

I caution you, that unlike the State, the Defense’s specific role in this case is to get their Defendants off. [Counsel for Smith]: Objection. THE COURT: Overruled. [Prosecutor]: It is their job, and they do it well, to throw up some smoke, to lob a grenade, to confuse. That doesn’t mean that they aren’t important and that you shouldn’t listen carefully. But even when all that is said and done, I believe that you will conclude, as you must conclude in this •case, that Cyrus Beads and Joseph Omar Smith conspired to murder, and did in fact murder, Lawrence Johnson, conspired to murder and did in fact attempt to murder, Jeremy Drake.

Did conspire to murder and did in fact attempt to murder Pascal Ryan [McCutcheon], And I thank you sincerely for your attention. The following transpired during the prosecutor’s rebuttal argument: [Prosecutor]: I don’t think it[ ]s right to call witnesses who come forward in a murder trial in Baltimore City names, like liar, or junkie, or militant. There are many, many reasons why witnesses do not come forward— ⁹ Objection Your Honor. THE COURT: Overruled. [Prosecutor]:—in murder trials immediately.

One of them is concern for safety. [Counsel for Beads]: Objection Your Honor. THE COURT: Overruled. [Prosecutor]: In this case, concern for family as well. My son, I know his entire family. We have moved, we live in Allegheny County now.

I don’t think it’s fair to call them names; convicted felon, liar, junkie, meal ticket. Why don’t we go a little further and say what we’re really thinking. [Prosecutor]: Another reason why witnesses do not come forward is because they don’t want to be subjected to the public humiliation of cross examination. They don’t want to be— [Counsel for Beads]: Objection Your Honor. THE COURT: Overruled. [Prosecutor]:—submitted to the public humiliation of sitting on the witness stand and speaking into this microphone about all of the mistakes and craziness of their lives. [Prosecutor]: Mr. Buie wasn’t put in this bad spot by Kelly Miller, or by Detective Juan Diaz.

Joey Smith brought this to him, to his lady Mend. And Joey Smith brought to him Cyrus Beads. That’s why he’s in this tough spot and for no other reason. And I would suggest that to this day he’s trying to protect that boy who both Kelly and Darren say they had not done anything but try to help, to give him a place to live when he had nowhere to go.

To give his girlfriend a place to live when she had nowhere to go. To help him get a job when he had no source of income, that they—no employment. They lent him money. They did nothing but help this boy.

Their words, not mine. So I show you this to remind you what this is about and to say to you enough. Say enough. Like some of the courageous women in this case said. ¹⁰ [Counsel for Smith]: Objection Your Honor.

THE COURT: Overruled. The jury convicted Petitioner Beads of the attempted second degree murders of Mr. McCutcheon and Mr. Drake, the first degree assaults of those two victims, conspiracy to murder those two victims, two counts of use of a handgun in the commission of a crime of violence, and three counts of carrying a handgun. The jury convicted Petitioner Smith of the second degree murder of Mr. Johnson, the attempted second degree murders of Mr. McCutcheon and Mrs. Drake, the first degree assault of Mr. Drake, conspiracy to murder Mr. McCutcheon and Mrs. Drake, three counts of use of handgun in the commission of a crime of violence, and three counts of carrying a handgun. Discussion L Petitioners argue that the trial court erroneously overruled objections to the above quoted unfairly prejudicial comments made by the prosecutor during opening statement, closing argument, and rebuttal argument.

We agree that the comments at issue were inappropriate. It is well settled, however, that [n]ot every improper remark [made by a prosecutor during closing argument], however, necessarily mandates reversal, and “what exceeds the limits of permissible comment depends on the facts in each case.” We have said that “reversal is only required where it appears that the remarks of prosecutor actually misled the jury or were likely to have misled or influenced the jury to the prejudice of the accused.” This determination of whether the prosecutor’s comments were prejudicial or simply rhetorical flourish lies within