Grace v. State

Thompson, J., delivered the opinion of the Court. Glen Grace, the appellant, was convicted of armed robbery by a jury in the Criminal Court of Baltimore, Judge Meyer M. Cardin presiding. The sentence was for a term of fifteen years. Grace was identified by the victim, a filling station operator, as the person who robbed him at gunpoint.

When Grace was apprehended by the policemen, approximately one hour after the robbery, a pistol and a light tan jacket were found in the vestibule in which he was apprehended. The victim identified the gun as being similar to the one used by the robber, and the jacket as being similar to the one that was worn by the robber at the time of the robbery. It is contended that the trial judge committed error when he refused to grant a mistrial after the prosecutor stated in final argument: “Where did the defendant get the jacket, where did he get the gun * * * where is the explanation—where did he ⁵²² get them?” The argument is made that since the defendant did not testify, the above quoted comments referred to the accused’s failure to testify in his own behalf and thus violated the Fourteenth Amendment to the Constitution of the United States and Article 22 of the Declaration of Rights of the Maryland Constitution. Maryland has long held that it is reversible error for a prosecuting attorney to comment upon the failure of an accused to testify in a criminal case.

In a bastardy case, Smith v. State, 169 Md. 474 , 182 A. 287 (1935) the Court of Appeals of Maryland reversed the trial court for failure to grant a mistrial where the State’s Attorney had said: “ 'This prosecuting witness has testified that this defendant is the father of her child, and this defendant has sat here all during the trial and has not denied his fatherhood.’ ” The Court then stated: “There can be no question of the impropriety of this remark, as it was susceptible of the inference by the jury that they were to consider the silence of the traverser. . .” A similar rule was adopted by the Supreme Court of the United States in Griffin v. California, 380 U. S. 609 , 85 S. Ct. 1229 , 14 L.Ed.2d 106 (1965), but the rule does not apply, where, as here, the thrust of the remark is