Fryson v. State

Gilbert, J., delivered the opinion of the Court. Kirk Oliver Fryson, appellant, was convicted in the Criminal Court of Baltimore, by a jury, of attempted robbery with a dangerous and deadly weapon. Appellant was sentenced to incarceration for a period of ten years. ³²² On appeal, an attack is made upon, inter alia, allegedly improper remarks made by the prosecutor during rebuttal argument to the jury. Because we conclude, for the reasons hereinafter stated, that the remarks were indeed prejudicial to the appellant’s rights to a fair and impartial trial, we shall reverse the judgment of conviction.

In view of our holding, we do not reach the other issues raised in this appeal. The record in the instant case reveals that on August 18, 1971, at approximately 3:30 p.m., appellant hailed a taxicab at Howard Street and North Avenue, in Baltimore City, and directed the driver to transport appellant to 33rd Street and Greenmount Avenue. Appellant rode on the right front seat of the vehicle. After the cab had arrived at the designated site, the appellant directed the driver to take appellant to Druid Hill Park.

The driver testified that during the course of the ride the appellant commented upon the beauty of the driver’s ring. The appellant had a black cowboy-type hat on his lap. The driver testified that upon his arrival in the park he observed that the appellant had a butcher knife under the hat. The driver quickly got out of the cab, and the appellant fled, while the cab driver, yelling for assistance, followed in pursuit.

The cab driver acknowledged that the appellant did not say anything to him about holding him up nor did appellant make any demand upon him. The driver, because of the sudden appearance of the knife, assumed that he was about to be held up. He said that when the knife came into view, it was “[j]ust the same as pulling out the knife, and saying, ‘This is it.’ ” One of several persons who was at the nearby tennis courts in Druid Hill Park joined in the chase of appellant, but the appellant outdistanced and eluded his pursuers. The cab driver returned to his cab and started back to the taxi garage.

The other pursuer reported the happening to the police. Thereafter,, an officer, having been supplied with a description of the appellant, detected the appellant amid a group of juveniles. When the ³²³ officer started toward the appellant, the appellant ran, scaled a seven foot fence and hid. The officer espied the appellant and arrested him at gunpoint.

The appellant was then transported to the police station where he was read his Miranda rights, and after signing his initials behind each of the provisions contained therein, subscribed his full name to the bottom of the form, thereby acknowledging a waiver of Miranda. At the trial, a suppression hearing was held out of the presence of the jury, and the trial court seemingly concluded 1 that appellant’s oral statement was admissible into evidence. 2 Appellant took the stand in his own behalf and denied any intent to rob the taxi driver. We were informed during oral argument and in the appellant’s brief that the Assistant State’s Attorney told the jury during his rebuttal argument that if the appellant was found guilty he would “be put on probation,” and that the trial court has access to “plenty of parole officers, and social workers and things like that.” The record, however, is silent as to what exactly transpired other than an objection by appellant’s counsel to the non-recorded remarks, and the trial court’s sustaining thereof. 3 At the hearing on the motion for a new trial, an allegation pertaining to the above quoted remarks was made. The trial court responded: “The Court sustained the objection during closing argument to that portion of the argument objected to by the defendant, and took all ³²⁴ steps requested by the defendant with respect thereto.” Actually, all the trial court did was to sustain the objection.

The court’s response to appellant’s claim of what transpired during the State’s rebuttal argument gives credence to the factual basis of appellant’s allegation. Moreover, the State does not contest the fact that the remarks were made, but argues that appellant failed to request curative jury instructions. Such remarks on the part of the prosecutor are highly prejudicial. Shoemaker v. State, 228 Md. 462 , 180 A. 2d 682 (1962); Holbrook v. State, 6 Md. App. 265 , 250 A. 2d 904 (1969).

In Shoemaker , the Court of Appeals considered a case wherein statements were made by the prosecuting attorney during argument to the jury that related to parole. Objection was made and overruled and the comments continued. The Court said, at 468: “The statements with regard to parole in the context in which they were made here, we think, exceeded the limits of permissible comment by the prosecutor. This Court has never had occasion, as far as we are informed, to consider the question whether remarks relating to possible parole, or similar remarks, constituted reversible error.

Of course, each case depends a