Eastman v. State

¹⁶³ Lowe, J., delivered the opinion of the Court. None of the three issues raised by this appeal from convictions by a jury in the Circuit Court for Prince George’s County warrants reversal. I. The first concern is that after appellant had failed to file a timely motion to suppress pretrial identification evidence, the trial judge declined a hearing upon an oral motion on the morning of trial. Appellant contends that his counsel’s "reasonable expectation” that the case would not be tried constituted good cause for the failure to file timely.

To buttress his contention he stresses the fact that the prosecutor agreed not to object and equates that concession to our expressed belief in Baldwin v. State, 45 Md. App. 378 (1980), that counsel’s reliance upon a prosecutor’s agreement that a similar motion could be filed late constituted "good cause” under Md. Rule 736 a. Our dicta in Baldwin was not influenced by the agreement with the State’s Attorney that he would not object; rather the "good cause” was the underlying circumstance which led the prosecutor not to object rather than the agreement itself. In Baldwin defense counsel was prepared to file his motion propitiously but was deterred at the request of the State’s Attorney who was engrossed in a prolonged murder trial and was not prepared to address the difficult issue raised by the motion. The defense in Baldwin delayed the filing solely as an accommodation to the State.

In this case the delay was not an accommodation to the State. The prosecutor’s agreement not to object was not even sought during the filing time set forth in the rule but occurred well beyond the 30 days within which the motion should have been filed. The failure to file was not remotely for prosecutorial purposes. To the contrary, the agreement not to object appears to have been an agreement not to rub salt in the already exposed wound of appellant; a gentlemanly accommodation to avoid embarrassing ¹⁶⁴ appellant by declining to emphasize the rule violation.

Indeed, it was but a week before trial that appellant suggested his intention to move orally to suppress. The prosecutor graciously agreed not to object — and did not. The only issue then is the "underlying circumstance” whether counsel’s "... belief, based on a certain amount of reason, that the case would not go forward and be tried,” constituted "good cause” to avoid the rule’s time requirements. Clearly, if such would suffice, the rule would have little or no meaning.

The judge’s discretion was not abused by holding such a reflection did not constitute "good cause.” II. Appellant then complains that: "In his closing argument to the jury, the prosecutor remarked: I submit that when you take the testimony of those six honest people, and you balance it against what this individual has told you, and there has been no testimony, ladies and gentlemen, other than his, I submit to you that counsel in his opening statement to you does not present evidence in the case, and when Mr. Christian told you that Mr. Eastman did not know where he was, that is what Mr. Christian told you. No evidence has come from the stand on that, (emphasis added). Appellant’s objection to the comment was overruled, and the prosecutor repeated the point.” We agree with appellant that there can be no comment on a defendant’s failure to testify, Griffin v. California, 380 U.S. 609 (1965), rehearing denied, 381 U.S. 957 (1965); however, when placed in context, the prosecutor did nothing more than point out that appellant had failed to produce evidence ¹⁶⁵ of his lack of knowledge, as had been pronounced by counsel’s opening statement: "We expect the evidence to show that Mr. Eastman was not arrested for these robberies until August of this year.

In other words, it was a time lag of 17 months between the time of the robbery and the time that Mr. Eastman was arrested. For that reason, ladies and gentlemen, we cannot present any evidence as to the content of these crimes. Frankly, my client, when he was arrested in August of this year, could not recall what he was doing on two obscure dates in March of 1978. By the same token, ladies and gentlemen, we will not present an alibi defense, because my client, again, simply lacks the knowledge and the ability to recall as to what he was doing 17 months from the day he was arrested.” Opening statements are to preview what is to come in the way of evidence, not to argue what may be inferred from facts not in evidence.

Appellant’s counsel implicitly promised to prove that "it was a time lag of 17 months between the time of the robbery and the time that Mr. Eastman was arrested,” allowing the jury to infer that lapse excused the