Dill v. State

Moylan, J., delivered the opinion of the Court. The Appellant, Robert David Dill, III, was convicted in a jury trial in the Circuit Court for Cecil County of receiving stolen goods and received a sentence of three years. On appeal he raises two contentions: (1) That the trial court erred in denying his motion ³⁶³ for a judgment of acquittal at the conclusion of the State’s case; and (2) That the trial court erred in overruling Appellant’s objection to the Assistant State’s Attorney’s comment on the Appellant’s failure to testify. In view of our disposition of the second question, it will be unnecessary to consider the first.

In this case the Appellant did not take the stand in his own defense. As a matter of fact, the defense put on no case whatsoever. Unfortunately no request was made by either the State or the Appellant to transcribe closing arguments and consequently no transcript was made. Because of the objection which immediately followed it, one sentence was transcribed from the closing argument of the Assistant State’s Attorney.

In the course of argument, the Assistant State’s Attorney said to the jury “if there are reasons why innocent people do not testify before the court, I do not know what they would be”. At that point counsel for the Appellant objected and requested that the Court instruct the jury to disregard the remark of the Assistant State’s Attorney as a gross misstatement of the law. The Court overruled the objection on the ground that the comment of the Assistant State’s Attorney was simply “a matter of argument”. No curative instruction consequently was given to the jury.

A long line of decisions of the Court of Appeals and of this Court have made it plain that for the State to comment upon the failure of a defendant to take the stand is in clear contravention of Article 22 of the Maryland Declaration of Rights and of Article 35, Section 4, of the Public