Calloway v. State

¹¹⁷ JAMES R. EYLER, Judge. Factual Background On March 23, 2000, James Elijah Calloway, appellant, went to the Campus Way Exxon in Largo, Maryland to pick up his recently serviced vehicle. Appellant demanded to test-drive the vehicle before paying for the repairs. The station owner, Mr. Rishi Gosain, rode in the passenger seat while appellant drove.

As to the sequence of events which followed, there was conflicting testimony presented at trial. Appellant testified that because the vehicle did not function properly he drove Mr. Gosain back to the Exxon station and refused to pay the bill. When they reached the station, Mr. Gosain would not exit the vehicle without payment. Appellant then drove away from the station and repeatedly tried to get Mr. Gosain out of the vehicle.

Mr. Gosain remained in the vehicle and yelled “carjack!”. Finally, appellant stopped the vehicle, walked around to the passenger side, and pulled Mr. Gosain out of the side door. Mr. Gosain testified that when he asked appellant to return the vehicle to the station, appellant refused. Appellant proceeded to throw Mr. Gosain’s cell phone out the car window because he attempted to call 911.

Appellant then stopped the vehicle, walked around to the passenger side, and physically attacked Mr. Gosain. Mr. Gosain testified that appellant ripped his shirt pocket, took $600.00, and knocked him unconscious. Appellant was charged with robbery, second degree assault, and felony theft. On November 29, 2000, a jury in the Circuit Court for Prince George’s County convicted appellant of second degree assault and acquitted appellant of robbery and felony theft.

The court sentenced appellant to ten years incarceration and suspended four years of the sentence. As rephrased by us, appellant raises the following questions on appeal. Finding no error, we affirm the conviction. ¹¹⁸ Questions Presented I. Did the circuit court err in allowing the prosecutor to make certain statements about race in closing argument?

II

Did the circuit court err in admitting evidence of appellant’s prior conviction? Discussion I. Closing Argument Appellant contends the circuit court’s failure to stop the prosecutor from commenting on race during closing argumérit diverted the jury’s attention away from the facts of the case and forced appellant to address the issue in response. Appellant asserts that reference to race was improper because the issue was not raised during trial and was highly prejudicial. “This determination of whether the prosecutor’s comments were prejudicial or simply rhetorical flourish lies within the sound discretion of the trial court.” Degren v. State, 352 Md. 400, 431 , 722 A.2d 887 (1999) (citations omitted). An appellate court should not reverse the trial court unless there was a clear abuse of discretion that prejudiced the accused.

Id. In closing argument, the prosecutor stated: I do want to take the opportunity to say one thing. . It saddens me when this issue comes up, because I understand how people feel in this country as best that I can. I’m a person of descent that’s other than that of the defendant and to the extent I sit here those kind of biases, prejudice in the country.

It doesn’t— [Defense counsel]: Objection, Your Honor. The Court: I’ll let him make the argument. The issue has been raised. [Prosecutor]: But, ladies and gentlemen, I was raised in a household and I was pushed in a baby carriage on the Lincoln Memorial when I was a baby by my parents. Listening to the words of Martin Luther King, I have heard ¹¹⁹ them not only repeated in this courtroom, but most recently I have heard people play the race card.

Sometimes it’s discussed when people come to the witness stand, play it to you. Again, appellant’s counsel objected and the court overruled the objection. The prosecutor then refrained from any further comments regarding race and continued with closing remarks. Appellant’s counsel responded in closing argument by addressing initially the issue of race.

Appellant’s counsel stated: nobody’s playing the race card unless it’s the government. All right. My client got on the stand and told you his story. He says this is what the man said to me.

I’m going to see that your black ass ends up in jail, something like that. It’s not exactly the race card. I will suggest to you that the State’s attorney is trying to play the race card. He’s looking at an almost black jury.

He wants them to listen to it. That’s why he mentioned it. In rebuttal, the prosecutor made no mention of race. Finally, the court properly instructed the jury that comments made in closing argument were not evidence.

Trial courts permit attorneys great leeway in presenting closing arguments. Henry v. State, 324 Md. 204, 230 , 596 A.2d 1024 (1991). The general rule prohibits prosecutors from raising matters not in evidence during closing. Degren, 352 Md. at 433 , 722 A.2d 887 (citing Evans v. State, 333 Md. 660, 679 , 637 A.2d 117 (1994)).

The rule is inapplicable in the instant case because the matter of race was raised during the trial. The following exchange took place between the prosecutor and appellant on cross-examination. [The prosecutor]: He [the victim] didn’t threaten you? [Appellant]: He called me a Nigger. [The prosecutor]: Before it’s a black person. Now it’s a different word. You are just trying to generate a little jury slur by that? [Defense counsel]: Objection. ¹²⁰ THE COURT: Sustained. [Appellant]: He told me he will get my black ass in jail.

Defense counsel did not object and the issue of race was raised. In addition, Mr. Gosain, the victim, gave rebuttal testimony denying the use of a racial slur against appellant. The trial court correctly found that the issue of race was raised during the trial which opened the door to comments on closing. Although “ ‘appeals to class prejudice ... are improper’ ”, Wilhelm v. State, 272 Md. 404, 414 , 326 A.2d 707 (1974) (quoting Wood v. State, 192 Md. 643, 652 , 65 A.2d 316 (1949)), “what exceeds the limits of permissible comment depends on the facts in each case, even where the remarks may fall into the same general classification.” Id. at 415, 326 A.2d 707 (citations omitted).

Even an improper remark does not necessarily compel reversal of a conviction unless the jury was actually