Bryant v. State

¹⁵² JOHN F. McAULIFFE, Judge, Retired, Specially-Assigned. We shall reverse the convictions in this case and remand for a new trial because of improper argument by the prosecutor that was not corrected by the trial judge. At about 7:30 p.m. on September 18, 1997, in the 2900 block of Parkwood Drive in Baltimore City, someone fired eight rounds from a .45-caliber handgun, fatally injuring Donte Walters and injuring Eric Brown. According to the State’s principal witness, Florence Savage Winston, Messrs.

Walters and Brown were walking south on Parkwood Drive when they were shot. Ms. Winston testified that the area was frequented by a number of persons who bought various kinds of drugs from dealers on the street. She was seated on the front steps of 2906 Parkwood Drive when she first heard people yelling, “44,” which, she explained, is the same as “5-0” and means, “Police in the area, stop what you are doing.” She next heard a man saying, “Heads up,” which, she explained, meant that “stick-up boys,” persons who rob drug dealers, were in the area. It was at this time that Walters and Brown were walking in the area.

She saw them stop and talk to someone, and then proceed past where she was seated. When Walters and Brown were in front of 2900 Parkwood Drive, shots were fired from diagonally across the street. Ms. Winston said it was dark, but she could see the muzzle flashes and knew the bullets were coming close to where she was seated. She saw both victims drop to the ground, before one of them got up and walked back in the direction from which he had come and around the corner on Omar Avenue.

She said that man then came back and lay beside the other victim. Ms. Winston testified she could not see who was firing the gun, but she did see a blue shirt with a design on it. She said she then went inside 2906 Parkwood Drive for a few minutes before returning to the steps to watch the activity that followed. The investigating police officers asked her that night if she had seen anything and she told them she had not. ¹⁵³ At the time of this occurrence, Ms. Winston was a self-described “dope fiend,” selling crack cocaine at the Parkwood Drive location to support her habit.

She said that on September 18, 1997, “I was either high or comfortable but I was under the influence.... ” Ms. Winston further testified that she saw the defendant, whom she knew well but only by his first name, the next morning when she returned to the steps on Parkwood Drive. She said the defendant “looked nervous” and was asking her questions about what she might have seen the night before, when it occurred to her that he may have been the shooter. She said she accused him and cursed him for shooting in the area where she was sitting, and he said he had not seen her there and would not have been shooting in that direction if he had. Ms. Winston said that when she had seen the defendant on the day of the shooting but before the shooting, he was wearing a blue shirt with a design on it, cut-off blue jeans shorts and “brand new brown butter tims (Timberland boots).” On the following morning when she spoke with the defendant, he had on the shorts and boots, but not the shirt.

Ms. Winston testified that the defendant called her from central booking on several occasions after his arrest, and during one conversation told her that he had nothing to do with the shooting and he was “just playing with her” when he spoke earlier of shooting in her direction. On September 21, Ms. Winston called the police and talked to Detective Bieling. She identified herself only as “Florence,” said she was a witness to the shooting, left her pager number, and asked that the detective in charge of the investigation contact her. Detective Bieling wrote a note to Detective Requer providing this information and stating, “She wants to deal away a theft charge.” At that time, Ms. Winston was on probation after serving two years of a five-year sentence for drug dealing and was awaiting trial on a separate theft charge and a charge of violation of probation.

Ms. Winston testified that she had several reasons for contacting the police: she was angry with the defendant for ¹⁵⁴ endangering her and for killing a person who was not a “stickup guy” but was just in the neighborhood to buy drugs; and, that she wanted police help with her pending charges so that she would not be sent back to jail. She said she asked to speak to the investigating detective only after finding out from the police that one of the victims had died. 1 Detective Requer testified that he ultimately contacted Ms. Winston and interviewed her on September 23. He said she related what she had seen and what the defendant had told her. He said that she also drew a diagram of the scene and annotated the diagram with statements of what had occurred at various places.

He said that her description of the location from which the shots were fired matched the location where cartridge casings were found, and that her description of the walking path taken by one of the victims after the shooting coincided with a blood trail the police had found on the night of the shooting. Detective Requer testified that he did not initially receive Detective Bieling’s note of September 21, but had talked with him. He denied that Ms. Winston had discussed her pending charges with him. He said, however, that at the request of Ms. Winston’s attorney he did go to the District Court in Catonsville and speak with the prosecutor handling Ms. Winston’s theft charge to confirm that she was a witness in a pending murder case.

Additionally, at the request of Ms. Winston’s attorney he thereafter met with Judge Themelis of the Baltimore City Circuit Court and the parties in connection with the pending violation of probation hearing, and confirmed Ms. Winston’s status as a witness in the present case. At the time of the trial in this case, the theft charge had been placed on the “stet” or inactive docket, and the violation of probation charge was pending. At trial, and during the direct testimony of Ms. Winston, the State sought to introduce an enlarged copy of the annotated ¹⁵⁵ drawing Ms. Winston had made at the time she was interviewed by Detective Requer. The diagram was admitted over the objection of the defendant, and this ruling is the basis for his first assignment of error on appeal.

During closing arguments, the prosecutor was permitted, over objection, to comment on the defendant’s courtroom demeanor during the testimony of Ms. Winston. This constitutes the defendant’s second assignment of error, which we shall consider first. The defendant was convicted of first degree murder, attempted first degree murder, and two counts of using a handgun in the commission of a felony. He was sentenced to life imprisonment on the murder conviction and concurrent sentences were imposed on the remaining counts.

Prosecutor’s Closing Argument During closing argument, the prosecutor acknowledged that one of Ms. Winston’s motives in going to the police was to obtain the State’s assistance with her pending charges, and further acknowledged that Ms. Winston’s lifestyle was not exemplary. The prosecutor then attempted to demonstrate corroboration of Ms. Winston’s testimony. She argued: But how else do you know that Florence was telling the truth? You were able to observe her demeanor.

Florence Savage [Winston] has had a rough time. She’s had a rough life, and she used drugs. I told you that from the beginning. And she’s been convicted of selling drugs, she wasn’t trying to hide anything.

She is who she is, and [s]he told you how long she had been using drugs. And if she wasn’t living the type of life that she lived, she wouldn’t have been out there in the 2900 block of Parkwood on September 17-18, excuse me. She wouldn’t have been out there. It’s because she lived that lifestyle, that’s why she was out there.

So don’t reward the defendant because he chooses to commit a crime in a high drug area where you’re not going ¹⁵⁶ to find people such as yourselves, and you’re not going to find people of the clergy and rabbis and Mary Poppins. You’re going to find people that are involved in that drug life. So don’t reward him because Florence Savage was part of that drug life. There is so much evidence that corroborates what she told you.

When I spoke about her demeanor when she testified, and how she answered [defense counsel’s] questions, did you notice the defendant’s demeanor when she testified, the way he kept looking down and couldn’t look at her? She looked in his eyes several times. DEFENSE COUNSEL: Objection, Your Honor. THE COURT: Overruled.

THE PROSECUTOR: You observed that, members of the jury, you were sitting here. We all saw it. He couldn’t sit up and look her in the eye because he knew she was telling the truth. He knew she was telling the truth.

The defendant argues that the prosecutor’s argument concerning courtroom demeanor of the defendant who did not testify constitutes reversible error. The State maintains that the prosecutor’s comment was not error, and if error, it was not sufficiently prejudicial to warrant reversal. Argument that asks the jury to consider the demeanor of a witness when testifying is proper and is consistent with the jury instruction given in this case to consider “the witness’s behavior on the stand and way of testifying; did the witness appear to be telling the truth.” Argument that comments on the courtroom demeanor of a defendant who elects not to testify is a different matter. Courts that have considered- this question have reached different conclusions about when, if ever, comment on a defendant’s courtroom demeanor is proper.

In State v. Rivera, 253 NJ.Super. 598, 602 A.2d 775 (1992), the court held that when a defendant engages in “testimonial behavior before a jury” by injecting unsworn comments into a trial by word, gestures, display of emotion, or other demeanor intended to influence the jury, the prosecutor may, with advance approval of the court and the making of a ¹⁵⁷ record of the defendant’s conduct, make a limited argument noting the fact of the behavior and that the comment or demeanor should not be considered by the jury. The court further stated, however, a prosecutor may not comment upon the failure of a defendant to act in a particular way during a trial. Id. at 777 . See also State v. Johnson, 120 N.J. 263 , 576 A.2d 834, 851-52 (1990) (improper for prosecution to argue that defendant failed to make eye contact with jurors during trial.) In United States v. Wright, 160 U.S.App.D.C. 57 , 489 F.2d 1181, 1186 (1973), the court held that the courtroom behavior of the defendant off the witness stand was not in any sense relevant to the question of guilt or innocence.

In United States v. Pearson, 746 F.2d 787, 796 (11th Cir.1984), the prosecutor argued: You saw him sitting there in trial. Did you see his leg going up and down? He is nervous. (Appellant’s objection overruled.) You saw how nervous he was sitting there.

Do you think he is afraid? The court stated: It is also clear that the defendant’s behavior off the witness stand in this instance was not evidence subject to comment. United States v. Wright, 489 F.2d 1181 (D.C.Cir.1973). In overruling Petracelli’s objection and in failing to give a curative instruction, the court, in effect, gave the jury an incorrect impression that the appellant’s behavior off the witness stand was evidence in this instance, upon which the prosecutor was free to comment.

In United States v. Carroll, 678 F.2d 1208, 1209-10 (4 th Cir.1982), the court held that argument of a prosecutor describing courtroom behavior of a non-testifying defendant and suggesting that the jury consider the behavior as evidence of guilt was error. See also United States v. Leal, 75 F.3d 219, 225-26 (6 th Cir.1996) (government concedes misconduct of prosecutor in commenting on courtroom conduct of defendant); United States v. Schuler, 813 F.2d 978, 980-82 (9 th Cir.1987) (in the absence of a curative instruction from the ¹⁵⁸ court, a prosecutor’s comments on a defendant’s off-the-stand behavior constitutes a violation of the due process clause of the Fifth Amendment). The Supreme Court of Delaware, in Hughes v. State, 437 A.2d 559 (Del.Supr.1981), held improper the prosecutor’s comments that characterized a non-testifying defendant’s courtroom demeanor as unemotional, unfeeling, and without remorse. In our view, the courtroom demeanor of a defendant who has not testified is irrelevant.

His demeanor has not been entered into evidence and, therefore, comment is beyond the scope of legitimate summary. See generally, Borodine v. Douzanis, 1 Cir., 592 F.2d 1202, 1210-11 (1979); Villacres v. United States, D.C. Ct.App., 357 A.2d 423 , 426 n. 4 (1976); State v. Smith, Mo. Ct.App., 588 S.W.2d 27, 32 (1979). Moreover the practice is pregnant with potential prejudice.

A guilty verdict must be based upon the evidence and the reasonable inferences therefrom, not on an irrational response which may be triggered if