Francis v. State

MATRICCIANI, J. On May 4, 2010, the Grand Jury for Baltimore City indicted appellants, Baltimore City Police Officers Tyrone Francis and Milton Smith, on charges of kidnapping, false imprisonment, assault in the second degree, conspiracy, and misconduct in office. On April 19, 2011, the Circuit Court for Baltimore City commenced trial, and on May 2, 2011, the jury returned its verdict acquitting appellants of all crimes but misconduct. On June 1, 2011, the court sentenced each appellant to eighteen months of confinement, all suspended, and to eighteen months ⁸ of probation. On June 7, 2011, appellants noted their appeals, which were consolidated on March 26, 2012.

Questions Presented Appellants present the following questions, which we have rephrased for clarity: I. Did the circuit court err when it denied appellants’ motions for mistrial on the grounds of improper and prejudicial remarks in the State’s closing argument?

II

Did the circuit court err when it instructed the jury that the crime of misconduct in office includes “wrongful” acts?

III

Did the circuit court err when it denied appellant’s motion for mistrial where the State failed to disclose certain inconsistent witness statements prior to trial?

IV

Did the circuit court err when it suspended a codefendant’s trial and continued with appellants’ defense and verdict? For the reasons that follow, we answer no to each of these questions and affirm the judgments of the Circuit Court for Baltimore City. Factual and Procedural History Appellants were detectives in the Baltimore City Police Department, assigned to the “Violent Crimes Impact Division.” 1 On May 4, 2009, they were on patrol with a third detective, Gregory Hellen, in the area of the Gilmore Homes public housing development in west Baltimore. The detectives were wearing plain clothes and riding together in an unmarked blue van as an “overtime crime suppression detail” 2 ⁹ when they encountered Shawnquin Woodland 3 and, after parting ways with him, encountered Michael Johnson, both of them fifteen-year-old area residents.

The details of these encounters are hotly contested, but it is undisputed that after driving around for some time with each of the young men, the detectives deposited Woodland in east Baltimore, approximately three miles from the Gilmore Homes, and deposited Johnson in Howard County, approximately ten miles west of the Gilmore Homes. Woodland walked the three miles back to his residence. In Howard County, Johnson called 911 from a gas station nearby, and at approximately 8:00 p.m., Officer Terrence Benn of the Howard County Police Department found Johnson where he had been left, wearing damp clothes without shoes or socks and appearing frightened. Appellants were indicted on May 4, 2010, and charged with kidnapping, false imprisonment, assault in the second degree, conspiracy, and misconduct in office.

They and Hellen moved to sever all charges and all co-defendants, but the circuit court denied their motion and ruled that the evidence in all cases and all counts was mutually admissible. Appellants elected to be tried by jury while Hellen chose a bench trial, and the joint proceedings commenced on April 19, 2011. The State called Woodland to testify, and he provided the following version of the events of May 4, 2009. At approximately 5:00 p.m., Woodland was standing with his friend when the three detectives drove up and asked Woodland a question.

When he did not respond and started laughing at his friend’s joke, the detectives exited the vehicle, handcuffed him, and placed him in the van. Smith said that Woodland needed to “learn a lesson,” and the detectives made threatening statements as they drove. Woodland answered no questions, but when the detectives dropped him off in east Baltimore, Smith said, “Thanks for the information.” 4 Woodland spent forty- ¹⁰ five minutes walking home and, when he arrived, told Johnson and Myron Evans (Johnson’s cousin) what had happened. The detectives were still there and approached the three young men, at which point Woodland walked away.

Woodland saw the detectives leave, return, and confront Johnson, at which point Smith grabbed Johnson’s shirt and forced him into the van. Johnson also testified at trial and recounted the following facts. Francis was in the van when he called Johnson over and told him that Smith, seated in the back of the van, had something to say. When Johnson approached the van, Smith said that if Johnson “ever look[s] at him wrong or mug[s] him or something,” Smith would sodomize him.

Johnson walked away and mumbled something, then Smith exited the vehicle, grabbed Johnson by the shirt and hands, and forced him into the van, where he told him that “the area was going to learn some respect.” Smith threw Johnson’s phone battery out of the window and removed Johnson’s shoes and socks before dropping him off in Howard County, where he called 911 twice and reported that he had been beaten and abandoned by the detectives. Myron Evans, who had been with Woodland and Johnson earlier, and Cory Taylor, another young area resident, testified that the detectives returned to the Gilmore Homes development and threw Johnson’s shoes and socks from the van. Taylor gave the shoes to Evans’s sister, Shekia McCaskill, who testified that when she took them to Johnson’s residence, he was on the steps of his house, visibly upset and without shoes. On cross-examination, Woodland stated that he did not see the detectives throw Johnson’s shoes and socks from the van when they returned to the Gilmore Homes.

The defense confronted Woodland with a 2009 police report indicating that he had seen Johnson’s socks and shoes thrown out, and asked whether he had told the State’s attorneys the same thing. Woodland denied what was in the report, and he stated that he told both the police and the State’s attorneys that he had ¹¹ not seen Johnson’s shoes thrown from the van. The defense moved for a mistrial on the grounds that the State had “an absolute obligation” to disclose Woodland’s statements to the State’s attorneys because they contradicted the police report of his statement in 2009. The court denied this motion, ruling that because the State had disclosed Woodland’s police statement along with contradictory statements from other witnesses, it had satisfied its obligations under Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), and Maryland Rule 4-263. 5 When the defense cross-examined Johnson, he stated that he had called 911 twice from Howard County.

He explained that in his first call, he told the operator that he had been “beaten up” by the police, but the dispatcher laughed and hung up, and Johnson had to call back and repeat himself. The second time, the dispatcher asked if Johnson had called a moment ago and eventually directed Officer Benn to Johnson’s location. Johnson said he had informed the police of these facts in 2009 and, more recently, had informed two State’s attorneys. The defense moved for a mistrial, arguing that a 2009 police report and a 911 recording that the State disclosed in discovery did not indicate that Johnson made two calls or that the operator had laughed and hung up on him, and that the State therefore should have disclosed Johnson’s contradictory statements made to the State’s attorneys.

The court noted that ¹² phone records in evidence showed that Johnson had, in fact, made two calls to 911. Continuing, the court held that Johnson’s statements were not material to appellants’ guilt, but that they were impeachment evidence that should have been disclosed under Rule 4-263(d)(6). The court denied appellants’ motion for a ten-day continuance but granted them one day to investigate the issue. After the State rested, appellants’ co-defendant, Officer Hellen, moved for a continuance to accommodate his trial counsel’s schedule.

The court granted the continuance and suspended only Hellen’s bench trial, while the court proceeded with appellants’ jury trial and verdict. Of the three detectives, only Officer Francis testified for the defense. He explained that he believed Woodland was either under arrest or providing information on criminal activity, and that Johnson was put in the van because he was providing similar information. Francis also testified that none of the detectives made the remarks that Woodland and Johnson alleged.

Finally, Francis stated that he drove into Howard County because he missed an exit on the beltway, and that Smith told him to leave Johnson in the county because Johnson requested to be left there. Appellants concluded their defense and the court charged the jury. Appellants objected to the court’s proposed misconduct instruction on the grounds that the crime of malfeasance includes only “unlawful” acts. 6 The court denied appellants’ objection and instructed the jury that the State had to prove that each appellant “corruptly did the unlawful or wrongful act” (emphasis added) of transporting each victim against his will to a location not of his choosing. In closing, the State argued that the detectives’ failure to follow proper police procedures was evidence that they were not conducting a legitimate investigation on the night in ¹³ question.

The State recounted testimony from various police officials saying that officers cannot use a juvenile as an informant without parental permission. The State then called into question the defense’s theory that if a juvenile is a “confidential source,” an officer could take the juvenile to a remote location for questioning without parental permission. The State argued that a confidential source is someone who comes forward with information, and not “a person that you pick up off of the street and take wherever you want without their parent’s permission.” The State attempted to round out its argument with a rhetorical question: “Yet in their arrogance these Defendants suggest that because these kids live in—can you imagine this argument being made in Howard County or Baltimore County?” The court sustained the defense’s objection to this comment, without explanation. The State immediately launched into another rhetorical question and asked, “Do you think if there was any legitimacy to [the defendants’] taking these 15-year-olds and dropping them off miles from their homes that [the defendants] would have been suspended without even ...” Again, the defense interrupted with an objection and the court ordered the statement struck.

When the State concluded its argument, the defense moved for a mistrial and argued that the State’s first rhetorical question was an appeal to racism and bias. The defense also argued that the State’s second rhetorical question improperly suggested that the detectives’ suspension from work was a determination of wrongdoing. The court denied the motion for mistrial, holding that the State’s attorney was interrupted during its first question and thus “didn’t even make” the argument that the defense attributed to her. The court also held that having struck the State’s second question was a sufficient remedy and that it required no further action.

In closing argument, counsel for Smith argued to the jury members that the State was asking them “to act like [the defendants] just appeared one day on May 4th, 2009 as police officers and somehow became rogue cops, became rogue detec ¹⁴ tives and stepped out of who[ ] they have been for so long to commit these crimes.” Counsel for Francis similarly argued that the detectives were “good officers:” Never once have they had a complaint filed against them for kidnaping, assault, [or] false imprisonment[,] and the State wants you to believe that on May 4th, 2009, in the midst of executing a federal warrant against a very dangerous man, in the midst of doing their job, they decide we’re just going to go and kidnap people. The State took up this issue in its rebuttal and argued: “We are not saying ... that all of [a] sudden their behavior just changes. We’re saying this time they got caught.” The defense objected, 7 but the court overruled the objection and the State continued: “This time they got caught. Because these two brave young men had the courage to come forward and tell us what happened.” The jury deliberated and returned its verdict acquitting appellants of all counts except misconduct.

As previously indicated, the court sentenced each appellant on June 1, 2011 to eighteen months of confinement, all suspended, and to eighteen months of probation. Appellants then noted their appeals, which were consolidated for briefing and argument in this Court. 8 Discussion I. Appellants argue that the circuit court erred when it denied their motions for mistrial on the grounds of improper ¹⁵ and prejudicial remarks in the State’s closing argument. As a general matter, counsel are afforded “great leeway” when presenting that portion of their case. Donaldson v. State, 416 Md. 467, 488 , 7 A.3d 84 (2010). [I]t is, as a general rule, within the range of legitimate argument for counsel to state and discuss the evidence and all reasonable and legitimate inferences which may be drawn from the facts in evidence; and such comment or argument is afforded a wide range.

Counsel is free to use the testimony most favorable to his side of the argument to the jury, and the evidence may be examined, collated, sifted and treated in his own way. Moreover, if counsel does not make any statement of fact not fairly deducible from the evidence his argument is not improper, although the inferences discussed are illogical and erroneous. Generally, counsel has the right to make any comment or argument that is warranted by the evidence proved or inferences therefrom; the prosecuting attorney is as free to comment legitimately and to speak fully, although harshly, on the accused’s action and conduct if the evidence supports his comments, as is accused’s counsel to comment on the nature of the evidence and the character of witnesses which the [prosecution] produces. Wilhelm v. State, 272 Md. 404, 412-13 , 326 A.2d 707 (1974) (brackets in original), quoted in Mitchell v. State, 408 Md. 368, 380 , 969 A.2d 989 (2009).

Despite this latitude, counsel may not comment upon facts not in evidence or appeal to the prejudices or passions of the jurors. Id. at 489 , 7 A.3d 84 . We will not reverse a conviction due to a ruling on a prosecutor’s improper remarks unless there has been an abuse of discretion by the trial judge of a character likely to have injured the complaining party; this is so if it appears that the remarks actually misled the jury or were likely to have misled or influenced the jury to the defendant’s prejudice. Id. at 496-97 , 7 A.3d 84 .

We therefore consider whether each remark was independently proper, then take them together in light of the circumstances at trial to determine whether they justified a mistrial. Id. at 496-97 , 7 ¹⁶ A.3d 84 . For the reasons that follow, we hold that while certain State comments were—or may have been—improper, they were not likely to have misled or influenced the jury to the defendant’s prejudice. A. Appellants’ Prior Conduct Appellants first claim that the State improperly commented on facts not in evidence when the State’s rebuttal argument insinuated that appellants had not been caught despite committing similar acts in the past.

In response, the State argues that its rebuttal comments were an “invited response” to the defense’s closing argument that appellants had no history of improper police conduct. See Mitchell, 408 Md. at 381-82 , 969 A.2d 989 (explaining the rule of “invited response”). In our opinion, the State’s argument was a fair comment on the evidence. The defense, in closing, urged the jury to recall that appellants have no adverse disciplinary history and, from that fact, infer that they had not actually committed any bad acts in the past.

The State, in turn, asked the jury to consider that the dearth of evidence could also be explained by imperfections in the disciplinary process, and the State urged the jury to infer the opposite of appellant’s suggested fact. Of course, neither side had any evidence of how “accurate” the disputed disciplinary process is, but to hold that these remarks were unfair would prevent an attorney from either critiquing or defending any disciplinary system without evidence of that system’s accuracy. There are, of course, practical limits to such inquiries, and we cannot expect parties in every case to investigate these matters. 9 It would thus be folly to prohibit attorneys from remarking that all evidence leaves some uncertainty as to the ultimate fact to be proved or disproved (hence the universal legal burden of “reasonable ¹⁷ doubt”). 10 We therefore hold that both the defense’s inference and the State’s inference were fair comments on the evidence—or lack thereof. 11 B. Geographical Comparisons Appellants next argue that the State’s reference to Baltimore and Howard Counties was “calculated to unfairly prejudice the jury against the defendant” by appealing to the jurors’ personal interests as residents of Baltimore City. Appellants rely on Hill v. State, 355 Md. 206, 225 , 734 A.2d 199 (1999), which held that “appeals to jurors to convict a defendant in order to preserve the safety or quality of their communities are improper and prejudicial.” As we see it, there are two possible interpretations of the State’s rhetorical question asking the jury to consider how appellants’ actions would be perceived in Howard or Baltimore Counties as opposed to the City.

First, the State may have meant that appellants were simply mistaken in believing that city residents are more likely to know information useful to police. But the more likely meaning—intended or not—is that regardless of whether interrogating the average city resident ¹⁸ is more fruitful than interrogating the average county resident, the two groups should be treated equally. Regardless of whether this was an appeal to class, race, or any other demographic division, it had no basis in the evidence and possibly appealed to the jury’s interests as city residents; as such, it appears to have been an improper comment. 12 C. Appellants’ Suspensions Appellants next contend that the State commented on facts not in evidence when it referred to appellants’ suspensions from work following the incidents in question. In our view, this was an improper remark on facts not in evidence, but we note that it did not introduce appellants’ suspensions into the trial; that fact had arisen earlier from various witness’ testimony. 13 On the other hand, there was no record evidence showing the import of their suspensions and whether they were at all probative of misconduct, which rendered the State’s comments improper.

Nonetheless, the State argues that any prejudice was cured when the court sustained appellants’ objection and struck the comment from the record. D. Prejudice Having considered the propriety of each statement, we now must determine whether, taken together, they actually misled the jury or were likely to have misled or influenced the jury to the defendants’ prejudice. Donaldson, 416 Md. at 496-97 , 7 A.3d 84 . As explained, above, the State’s ¹⁹ comments about appellants’ prior conduct were not improper, or else they constituted a non-prejudicial “invited response.” Thus, our only concern is with the State’s rhetorical questions about geographical disparities and disciplinary proceedings. 14 A reviewing court will not reverse a conviction due to a prosecutor’s improper comment or comments unless there has been an abuse of discretion by the trial judge of a character likely to have injured the complaining party.

We must determine, upon our own independent review of the record, whether we are able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict. A prosecutor’s improper comments influenced the verdict, and therefore require reversal, if it appears that the remarks actually misled the jury or were likely to have misled or influenced the jury to the defendant’s prejudice. To determine whether improper comments influenced the verdict, we look to the facts of the case at hand. In particular, we consider the severity of the remarks, the measures taken to cure any potential prejudice, and the weight of the evidence against the accused.

Instead of considering each improper statement independently, ... we look at the cumulative effect of all errors on the ability of a jury to render a fair and impartial verdict in the context of the case. Id. (internal citations, quotation marks, and footnote omitted). In Hill, 355 Md. at 226 , 734 A.2d 199 , the Court of Appeals added that the reviewing court must “take account of the persistency of the prosecutor’s conduct—continuing to make these remarks time and again despite the court’s rulings that the remarks were improper.” A court obviously commits no error when it sustains objections to impermissible comments or gives a proper curative instruction, if that is all that is requested.

There is a risk, ²⁰ however, when the prosecutor persistently ignores those rulings and continues in an improper course of conduct, that the jury may come to regard the court’s rulings as rote window dressing and thus pay less attention to them. Id. We first note that the State’s comments were not persistent. The court immediately sustained the defense’s objections to both improper comments, and it ordered that the second be struck from the record.

The State did not undermine the trial court’s instructions by returning to either issue. If the trial court had granted a mistrial it would have been for two clipped statements; but these remarks were not so severe as to have misled the jury. Second, the State did not call on the jurors to act on their prejudices or personal interests as in Hill . Judge Wilner vividly described the State’s actions in Hill that led the Court to reverse the defendant’s conviction: The issue before us emanates, ultimately, from the insistence of the prosecutor, throughout the trial and over constant objection, on informing the jurors that they had a responsibility to keep their community safe from people like Hill.

In a soup to nuts performance, the prosecutor, whether through inexperience or a more disturbing disdain for proper conduct, began his inappropriate remarks with the very first statement he made to the jury and did not end them until the very last statement he made, paying utterly no attention to the numerous objections that were sustained by the court. 355 Md. at 211-13 , 734 A.2d 199 . Here, the State referred to the jurors’ community obliquely and abandoned the argument upon the court’s instruction. Third, we agree with the trial court’s assessment that the State did not make its argument clear to the jury. The State’s brief “performance” in this case lies closer to Couser v. State, 36 Md.App. 485, 501 , 374 A.2d 399 (1977), aff'd on other grounds, 282 Md. 125 , 383 A.2d 389 (1978), in which the prosecutor made a single improper statement: “Let me just ²¹ say this to you, by your vote you can say no to drug dealers, to people who rain destruction.” We held in Comer that while the State’s comment was improper, it was not likely to have misled the jury to the prejudice of the accused.

Id. at 501-02, 374 A.2d 399 . Fourth, although in the present case the State made two questionable comments, their combination does not remove this case from the realm of Comer and move it into prejudice. In its remark on appellants’ suspensions, the State posed a question that might occur to anyone who knew that appellants had been suspended. The jurors already knew just that, and thanks to the trial court’s swift intervention, the State was unable to drive its point home.

Finally, although the “weight of the evidence” against