Height v. State

DEBORAH S. EYLER, J. A jury in the Circuit Court for Baltimore City convicted Andrew Height, the appellant, of first-degree assault, use of a handgun in commission of a felony or crime of violence, wearing, carrying, or transporting a handgun, and possession of a regulated firearm after having been previously convicted of a disqualifying crime. 1 The court sentenced the appellant to 18 years’ incarceration for first-degree assault, a concurrent ten years for use of a handgun in commission of a felony or crime of violence, a concurrent three years for wearing, carrying, or transporting a handgun, and a concurrent five years without the possibility of parole for possession of a firearm after haying been previously convicted of a disqualifying crime. The appellant presents four questions for review, which we have rephrased slightly: I. Did the trial judge err when, in conducting voir dire, he posed questions to the venire collectively without obtaining answers, and then questioned each venire member individually at the bench?

II

Did the trial court err by overruling the appellant’s objection to a portion of the prosecutor’s opening statement that suggested a State’s witness was reluctant to testify because of the “law of the street”? ³²³ III. Did the trial court err by refusing to permit the cross-examination of a detective about whether he was suspended from the police force?

IV

Did the trial court err by not merging the appellant’s sentences for use of a handgun in a crime of violence and wearing, carrying or transporting the same handgun? For the following reasons, we shall vacate the appellant’s sentence for wearing, carrying, or transporting a handgun, and otherwise affirm the judgments of the circuit court. FACTS AND PROCEEDINGS On March 15, 2005, at approximately 9:45 p.m., the victim in this case, Bernard Holmstead Cure, was found near 1605 East Eager Street in Baltimore City. He had sustained a gunshot wound to the chest.

Cure told Officer Andre Robinson, of the Baltimore City Police Department, that he had been shot near East Eager Street and North Madeira Street. Cure was transported to The Johns Hopkins Hospital emergency room where he repeated that information to Detective Kevin Turner. 2 The next day, Detective Turner received a telephone call from an unnamed source suggesting that the shooting actually had occurred at the High Hat Lounge, a bar then located at 967 North Wolfe Street. 3 The High Hat Lounge was about three blocks east of where Cure was found. The intersection of East Eager and North Madeira Streets, where Cure ³²⁴ claimed to have been shot, was about three blocks farther east of the High Hat Lounge. 4 Detective Turner’s investigation led him to speak with three -witnesses: Harold Sessoms, Antoinette Calhoun, and Bernard Pratt. At trial, Detective Turner and these three witnesses testified for the State.

Harold Sessoms worked at the High Hat Lounge handling-carry-out and tending bar. On March 15, 2005, he witnessed a fight between two men at the bar. In particular, he saw the appellant hit another man with a handgun. Sessoms turned away and about “three to five minutes later” heard gunshots and saw everyone run out of the bar.

He did not see who was shot. When he went outside afterward, no one was there, so he did not call for an ambulance or the police. He closed up and locked the bar, but did not clean it because he was “not the clean up man.” He did not see the police or anyone from the Crime Lab photographing the bar, taking fingerprints, or recovering any bullets or shell casings from the bar. Sessoms’s first contact with the police about the incident was the next day, March 16, when he spoke to Detective Turner.

On March 25, 2005, ten days after the shooting, Sessoms gave a statement to the police and identified a photograph of the appellant. At trial, Detective Turner initially testified that Sessoms identified the appellant as the person who shot the victim in the bar; he clarified on cross-examination that Sessoms told him he did not see the actual shooting. Antoinette Calhoun, an admitted drug user at the time of the shooting, was present in the small bar area of the High Hat Lounge on March 15, 2005, at around 7:00 p.m. Several people were in the bar at that time, including Cure, the shooter, the bartender, and others.

Calhoun was standing near the side of the bar, next to Cure. The appellant was sitting next to Cure, and a woman named “Usa” was standing-nearby. Calhoun heard Cure and the appellant arguing, and ³²⁵ then saw the appellant rise up and hit Cure, apparently more than once. (Sessoms confirmed that Cure was sitting and the appellant was standing during this portion of the incident.) She then saw the appellant raise his hand, in which he was holding what appeared to be a silver gun, and heard gunshots.

The fight was in progress “[l]ike a couple of seconds” before the shots were fired. Neither Sessoms nor Calhoun testified that they actually saw the shooting. Although Sessoms heard three gunshots, he did not see who was shot. When asked whether she saw the appellant shoot the victim, Calhoun initially testified, “Let me think about that.

It couldn’t have been nothing else.” In clarifying her response, Calhoun said, “1 just seen him hit him.” On cross-examination, she testified she did not see the gun being fired. When asked how many shots she heard, she replied she did not know, but that she “heard enough to leave,” and that she had run out of the bar and to a friend’s house. Some days later, on March 23, 2005, after being taken into custody on drug possession charges, Calhoun gave a statement to the police. She also chose from a photographic array a picture of a person she knew as “Drew,” and identified him as the man who shot Cure at the High Hat Lounge.

Calhoun did not look at the photographic array for long because she “looked right at it and knew it.” She handwrote on the back of the appellant’s photograph, “Drew hit him and then he shot him.” Detective Turner confirmed that Calhoun identified the appellant’s photograph within seconds of being shown the array. Bernard Pratt testified that he was familiar with the High Hat Lounge and had known the appellant for a few years from the neighborhood. Although he knew several people who frequented the High Hat Lounge, including Sessoms and one Ingrid Lessane, a/k/a “Usa,” he did not know a person named “Bernard Cure.” After the March 15, 2005 shooting, the police spoke with Pratt, who was near the scene. At trial, Pratt testified that he ³²⁶ did not remember telling the police he had seen a shooting at the High Hat Lounge or that he had seen the appellant with a gun.

He also did not remember seeing a photographic array in this case and denied that he was shown the array identified as State’s Exhibit 3. When the prosecutor attempted to refresh Pratt’s recollection with a transcript of a prior recorded statement he had made to the police, Pratt denied ever having made such a statement. The prosecutor played part of the audiotape of the recorded statement, but Pratt denied it was his voice on the recording. According to Pratt, he was outside the High Hat Lounge on the night the shooting took place.

He did not see the shooting. He did not tell the police that he saw the appellant shoot anyone or that he saw the appellant with a gun in his hand. He did not identify in court the appellant in the photographic array. In Detective Turner’s testimony, he gave an entirely different version of Pratt’s police interview.

The interview took place on March 23, 2005, in the Eastern District station house interview room. Detective Turner identified a transcript of the recorded statement Pratt gave that day and a copy of the photographic array shown to Pratt that day. (State’s Exhibit 3.) He explained that Pratt was not mentioned by name in the statement because “he [Pratt] didn’t want to give his name cause he’s known in the area to a lot of the drug dealers, and the citizens, and he didn’t want to be known as a snitch.” Detective Turner testified that Pratt identified a photograph of the appellant in the array and, although he did not sign the array, he mote on the back of it, “This is Drew. He shot the boy in the bar.” Detective Turner identified the audiotape of the recorded statement given by Pratt.

The tape, which was the subject of a motion in limine outside the presence of the jury, was admitted into evidence as a prior inconsistent statement. On it, Pratt is heard to say that he had spoken with Cure inside the bar and, as they were leaving, he heard gunshots. He did not see the shooting, but he saw the appellant holding a gun in his hand afterward. On the ³²⁷ audiotape, Pratt also said that he had identified the appellant’s photograph in the array and had written, “This is Drew.

He shot the boy in the bar.” Finally, as to the State’s evidence, Detective Turner confirmed that no fingerprints, bullets, shell casings, or guns were recovered in connection with this case. The parties stipulated that the appellant previously had been convicted of a crime for which he was prohibited from possessing a regulated firearm. The defense called one witness, Ingrid Lessane, nicknamed “Usa.” She testified that she knew both the appellant and Bernard Cure and that she and Cure, but not the appellant, were inside the High Hat Lounge on the evening of March 15, 2005. She was speaking with Cure when a man she did not know entered the bar, pistol-whipped Cure, and then shot him.

Lessane hid behind the counter during the shooting. When it was over, she saw Cure lying on the ground and the shooter walking out of the bar. Additional facts will be included in our discussion. DISCUSSION I. The trial judge conducted voir dire in this case by reading to the entire venire panel 15 questions, without obtaining responses, and then having each venireperson come to the bench, one by one, to identify any question he or she answered affirmatively and then to answer follow-up questions, if necessary.

Before doing so, the judge explained the voir dire process to the venire panel, in part, as follows: I’m going to ask all of you some questions in order to obtain certain information that will be helpful to both the attorneys and the Court in determining whether or not you are eligible to serve as jurors in this case. Your legal requirement in responding to these questions, is the same as if each of you individually took the witness stand, and testified under oath, as indeed you are under oath. As it is ³²⁸ impossible to question each of you individually, the questions will be asked to you as a group. * ❖ Hs Hi H« Hi After providing additional information about voir dire, the trial judge continued: I emphasize again, that the fact that you’re questioned as a group does not lessen your obligation to accurately and truthfully make known your answers in response to the questions which are to follow. The ability of this Court to obtain jurors who are free of prejudice, and who are not related to, or friends of the parties is a very important inquiry as are all of the questions that you will be asked.

Now, please pay particular attention to this. I will ask these questions to you as a group in their entirety and I will not ask you to stand in response to individual questions. I will bring each of you to the bench, individually, after I have asked all of the questions, and we will take your answers to the questions at that time at the bench. So, you are not asked to stand in response to individual questions as I ask them, but please listen very carefully to all of the questions, and be prepared when you come to the bench to give us your answers at that time.

The trial judge first asked whether any member of the venire panel knew anything about the case and then asked whether any member knew any of the witnesses (reciting their names). At that point, defense counsel asked to approach the bench. He objected to the procedure of asking “the questions all as a group instead of having to stand up after each question so that we can write down the number ... [as it e]nds up being confusing to the jurors.... ” Defense counsel further argued that another case was pending on appeal dealing with this same issue and, therefore, “I would be objecting for the record asking if you could question and then bringing them up based on the fact that it would be confusing.” 5 The court ³²⁹ denied the request, remarking that, until the Maryland appellate courts have held otherwise, “I don’t have any reason to depart from the procedure that I’ve adopted.” The trial judge then propounded to the entire venire 13 additional questions, ranging from whether any prospective member of the jury knew the appellant, his attorneys, or the prosecutor, to whether any prospective juror or member of his or her immediate family had been a victim or convicted of a crime, and finally to whether there was any reason any prospective juror could not render a fair and impartial verdict based on the evidence and the law. Thereafter, the judge directed counsel to the bench, and ascertained that, with the exception of the previous objection, there was no further objection to the voir dire process at that point.

The trial judge commented to counsel: Let me just say that I think asking the questions as a group, being limited in number, my experience has been that they do remember the questions. Most of the folks don’t want to be here for one reason or another, and they come up, and give very fulsome answers to the questions to which they have responses, and the practice of having folks stand and taking numbers is itself distracting, and quite frankly, in my opinion, it educates other potential jurors of reasons or excuses by which they might avoid serving for reasons that may or may not be genuine. So, quite frankly, I don’t do this as a way of expediting the process. I do it because I think it’s a fairer way to get at the issue of bias and prejudice without causing the group as a group to educate, self-educated self [sic! without reasons they may achieve in being excused from service. ³³⁰ So, in addition to your objection which is noted on the record, I wanted to be perfectly clear on the record why after consideration at this point with a good amount of experience with the process, I’m convinced that this is a very effective way of conducting voir dire for the purposes that the Court has described....

The trial judge next heard from each prospective juror individually at the bench. 6 The colloquy typically involved an initial question from the judge whether the prospective juror had any positive responses to the questions, followed by a discussion of the juror’s responses, if any, and concluding with the judge asking if there was any reason the prospective juror could not be fair and impartial and reach a verdict based on the evidence and the law. The judge ruled on challenges by counsel throughout and also at the end of the entire process. The judge liberally granted strikes for cause and only did not ask a final “fair and impartial” question to prospective jurors who clearly were going to be stricken for cause (and then were). At the conclusion of the voir dire, the parties proceeded to select a 12-member jury and two alternates, all of whom the State and defense counsel indicated were acceptable.

The appellant contends the trial judge’s mode of stating the 15 questions to the entire venire collectively, without having the individual members stand, after each question, to give any affirmative response, “prevented [the prospective] jurors from being able to accurately and appropriately respond to all of the questions posed by the Court.” Although he does not cite any specific example, he argues that the process used by the court “likely caused some, if not all, of the jurors to forget some of the questions and, critically, their corresponding answers to those questions.” He further argues that the court compounded its error by asking potential jurors whether they had any additional information to provide in response to the ³³¹ court’s questions, thus shifting the burden of determining impartiality away from the court, in violation of the holding of Dingle v. State, 361 Md. 1 , 759 A.2d 819 (2000). The State responds that the appellant “distorts the actual process by which voir dire was conducted” in this case and “neglects to mention that each individual venire member was brought before the bench.” It further responds that Dingle is distinguishable and that, here, the trial judge did not abdicate to the prospective jurors his role in determining whether they could be fair and impartial. We agree with the State and hold that the trial judge properly exercised discretion in conducting voir dire in the instant case. The right to an impartial jury is guaranteed by the Sixth Amendment of the United States Constitution as made applicable to the States through the Fourteenth Amendment, and Article 21 of the Maryland Declaration of Rights.

Stewart v. State, 399 Md. 146, 158 , 923 A.2d 44 (2007); Hunt v. State, 345 Md. 122 , 146 n. 9, 691 A.2d 1255 (1997); Boyd v. State, 341 Md. 431, 435 , 671 A.2d 33 (1996), overruled on other grounds by Owens v. State, 399 Md. 388 , 924 A.2d 1072 (2007);; Hill v. State, 339 Md. 275, 280 , 661 A.2d 1164 (1995). The voir dire procedure exists to ensure juror impartiality, or stated another way, “ ‘to ascertain “the existence of cause for disqualification.” ’ ” Boyd, 341 Md. at 435 , 671 A.2d 33 (quoting Hill, 339 Md. at 279 , 661 A.2d 1164 ); accord Stewart, 399 Md. at 158, 923 A.2d 44 . As there is no statute in Maryland governing either the procedure for or the questions to be asked on voir dire, “this Court has consistently looked to Maryland’s common law for guidance.” Davis v. State, 333 Md. 27, 34 , 633 A.2d 867 (1993). Under Maryland common law, “ ‘the scope of voir dire and the form of the questions propounded rest firmly within the discretion of the trial judge.’ ” Boyd, 341 Md. at 436 , 671 A.2d 33 (quoting Davis, 333 Md. at 34 , 633 A.2d 867 ); accord White v. State, 374 Md. 232, 241 , 821 A.2d 459 (2003); Dingle, supra, 361 Md. at 13 , 759 A.2d 819 ; Uzzle v. State, 152 Md.App. 548, 558 , 832 A.2d 869 (2003) (stating that “Maryland ³³² has adopted and continues to adhere to, limited voir dire ”) (emphasis omitted).

Maryland adheres to limited voir dire under the broad discretion of the trial court. 7 “The scope of voir dire and the form of questions propounded rest firmly within the discretion of the trial judge.” Stewart, supra, 399 Md. at 159, 923 A.2d 44 . “We review the trial judge’s rulings on the record of the voir dire process as a whole for an abuse of discretion, that is, questioning that is not reasonably sufficient to test the jury for bias, partiality, or prejudice.” Id. at 160 , 923 A.2d 44 ; see also White, supra, 374 Md. at 243 , 821 A.2d 459 ; Dingle, supra, 361 Md. at 13 , 759 A.2d 819 . Voir dire in criminal cases is covered by Rule 4-312(d), 8 which states in relevant part: The court may permit the parties to conduct an examination of prospective jurors or may itself conduct the examination after considering questions proposed by the parties. If the court conducts the examination, it may permit the parties to supplement the examination by further inquiry or may itself submit to the jurors additional questions proposed by the parties. This Court has acknowledged that, although Rule 4-312(d) does not specifically address whether prospective jurors are to be questioned individually or collectively, see Davis v. State, 93 Md.App. 89, 106 , 611 A.2d 1008 (1992), the rule is “couched in permissive terms.” Wooten-Bey v. State, 76 Md.App. 603, 621-22 , 547 A.2d 1086 (1988).

Thus, it has been held consis ³³³ tently that there is nothing improper about a trial judge’s questioning prospective jurors as a group; the judge may question them either as a group or individually. Barber v. State, 16 Md.App. 235, 241 , 295 A.2d 814 (1972). See also Bedford v. State, 317 Md. 659, 671 , 566 A.2d 111 (1989) (“[WJhere it is shown that no prejudice will result, questions during voir dire may be propounded to Maryland jurors collectively, rather than separately.”); Connor v. State, 225 Md. 543, 549-50 , 171 A.2d 699 (1961). Indeed, the Court of Appeals has observed that “collective juror questioning long has been standard practice in Baltimore City.” Bedford, 317 Md. at 671 , 566 A.2d 111 (citing Connor, supra, 225 Md. at 549 , 171 A.2d 699 ).

In Colvin v. State, 299 Md. 88 , 472 A.2d 953 (1984), in which the petitioner argued that individualized voir dire was required in a capital case, the Court stated: [N]o authority has been brought to the attention of this Court, nor have we found any, mandating individual voir dire under any circumstances. To the contrary, as appellant concedes, in the absence of a statute or court rule to the contrary, as long as the selection process results in a fair and impartial jury, the method and manner of conducting a voir dire rests within the sound discretion of the trial court. Id. at 102 , 472 A.2d 953 . The voir dire method employed by the trial judge in this case was not a “rushed” process that interfered with the appellant’s jury selection rights, so as to have amounted to an abuse of discretion.

Before posing his questions to the entire venire panel, the trial judge told them he would be discussing their answers with them individually, at the bench, and reminded them to listen and remember the questions they had positive answers to. The judge then conferred one-on-one with each prospective juror (and with counsel) about his or her answers. There is nothing in the record to suggest that any of the prospective jurors forgot any of the questions posed, or were likely to have forgotten them. Not a single prospective ³³⁴ juror said anything at the bench about not remembering questions or answers or being confused by the questions.

And-the trial judge’s stated reason to counsel for not having the panel members answer the questions before the entire venire, only then to be interviewed individually by the court, made sense: He did not want prospective jurors angling for excuses based on excuses they noticed were working for other panel members. We further disagree with the appellant’s argument that the voir dire process employed here violated Dingle, supra, by “improperly shifting] the burden of deciding if jurors could be fair and impartial from the court to the jurors themselves.” In Dingle , the trial judge posed compound questions to the prospective jurors. The second part of each question asked the jurors whether, if they answered the first part of the question affirmatively, they still could be fair and impartial in deciding the case. Only when a juror had answered (to himself) both parts of a question was he then to answer affirmatively to the court.

The Court of Appeals found this method of inquiry deficient because the trial judge did not “determine, in the final analysis, the fitness of the individual venire persons.” Dingle, 361 Md. at 8 , 759 A.2d 819 . It was apparent that the trial judge in Dingle did not want to know any of the underlying reasons why a prospective juror stood in the first place because the court stated “[ajgain, ladies and gentlemen, if you’d please simply answer the question without elaborating, it would be very helpful.” Id. at 6 , 759 A.2d 819 . The specific problem in Dingle was the inherent ambiguity in the compound question, which necessarily resulted in a corresponding ambiguity in the jurors’ responses. The ambiguity made it impossible for the trial court to distinguish prospective jurors who did not have the potentially disqualifying association from those who did but nevertheless believed in their own minds that they could be fair and impartial.

The Court explained: Expediency and the perceived need to limit the process ... led the [trial] court to find a way to avoid examination of each affected venire person as to the admittedly relevant ³³⁵ matters and allow each such person to make his or her own call as to his or her qualification to serve. Id. at 14 , 759 A.2d 819 . The Court of Appeals later elaborated on its holding in Dingle , stating: The standard for evaluating a court’s exercise of discretion during the voir dire is whether the questions posed and the procedures employed have created a reasonable assurance that prejudice would be discovered if present. The disapproved Dingle-type questions, standing alone, would constitute reversible error.

See Dingle, 361 Md. at 21 , 759 A.2d at 830 . As we made clear in Dingle , the use of the compound question permits a juror to self-assess whether that juror could be fair and impartial. Id. at 19 , 759 A.2d at 828-29 . It is the responsibility of the trial judge, not the juror, to make the final determination as to whether the juror can be impartial.

White, 374 Md. at 242 , 821 A.2d 459 ; see also Borchardt v. State, 367 Md. 91, 138-39 , 786 A.2d 631 (2001) (the evil that Dingle sought to address was the fact that the compound questions at issue “left to the jurors themselves, and thus removed from the court, the assessment of whether they could be fair and impartial”). In White, supra, the Court rejected an argument that, a trial judge’s use of compound questions during voir dire examination had prevented empaneling a fair and impartial jury. The judge had asked general voir dire questions of the entire venire panel, including four compound questions, and then had conducted individual voir dire of each venire person at the bench. After noting that trial judges should refrain from asking compound questions during voir dire, and also reaffirming that in Maryland individual voir dire is not required, see White, 374 Md. at 242-43 , 821 A.2d 459 , the Court held that, considering the voir dire as a whole, the extensive examinations of the prospective jurors ensured “that the jurors chosen would be free from any preconceptions, biases, or ³³⁶ prejudices which might interfere with their ability to be fair and impartial jurors.” Id. at 244 , 821 A.2d 459 .

This case is more like White than Dingle . The questioning of the prospective jurors was thorough and designed to ensure that the jury chosen would be fair and impartial. Each prospective juror was brought to the bench and asked if he or she had any positive response to any of the questions the court had propounded; if so, the court engaged the prospective juror in a discussion designed to determine whether he or she could be fair and impartial. Unlike in Dingle , there were no compound questions asked that resulted in the prospective jurors themselves deciding whether they were qualified to serve, instead of the trial court so deciding.

The trial court properly exercised discretion in conducting voir dire examination in this case.

II

The appellant next contends the trial court erred by overruling his objection to the prosecutor’s remark in opening statement that one of the State’s witnesses was reluctant to testify because of “the law of the street.” He maintains that the prosecutor’s comment was improper under the holding in Lee v. State, 405 Md. 148 , 950 A.2d 125 (2008). The State responds that this issue was not timely preserved and is without merit in any event. The comment in question concerned the anticipated testimony of Bernard Pratt. The prosecutor stated in opening: Finally, you’re going to hear from Bernard Pratt who was also there that night.

Quite frankly, I expect Mr. Pratt to be difficult on the stand because I know he doesn’t want to testify. See, Mr. Pratt is also in jail on his own separate charges. He doesn’t follow the same laws that you and I do. The law that’s recognized in this courtroom.

He follows the law of the street. Rule number one on the street is you do not snitch. So, I expect him to get up there and I don’t know what he’s going to say. I didn’t see nothing.

I didn’t hear ³³⁷ nothing. I wasn’t there, but it doesn’t matter, ladies and gentlemen, because shortly after this incident, Mr. Pratt gave a taped statement to the detectives. He told detectives what happened that night. I submit to you that the only reason that he doesn’t want to testify in this trial is because he doesn’t ivant to be labeled as a snitch at this point. [DEFENSE COUNSEL]: Objection.

THE COURT: Overruled. Those are the three witnesses that you will hear from. All three of these witnesses gave statements, were presented with photographic arrays, and identified the Defendant as the person who shot Bernard Cure, all three of them. (Emphasis added.) First we shall address preservation.

The State, citing Rule 8-131(a) and Bates v. State, 127 Md.App. 678 , 736 A.2d 407 (1999), 9 contends the appellant’s objection was untimely, and thus he is precluded from arguing a violation of Lee . We disagree. In Bates , the co-defendants failed to object at any time to the prosecutor’s allegedly improper closing argument. Id. at 703 , 736 A.2d 407 (“Defense counsel neither objected when the argument was made nor at any later point.

Counsel did not request a mistrial or a curative instruction. Thus, the matter was never presented to the trial court and clearly is not preserved.”). Moreover, in Grier v. State, 116 Md.App. 534 , 698 A.2d 1133 (1997), overruled on other grounds, 351 Md. 241 , 718 A.2d 211 (1998), we addressed this same issue, in the context of closing argument: We shall continue to hold that objections to improper argument are timely if interposed either (1) immediately after the allegedly improper comments are made, or (2) immediately after the argument is completed. We shall ³³⁸ decline, however, requests to review “improper argument” objections that were not presented to the trial judge until after the jurors have been excused from the courtroom. 116 Md.App. at 545 , 698 A.2d 1133 .

Therefore, the appellant’s objection was timely and we shall address the merits of his argument. In Wilhelm v. State, 272 Md. 404 , 326 A.2d 707 (1974), a case concerning both opening statement and closing argument, the Court of Appeals set forth the following general rule with respect to opening statements by prosecutors in jury trials of criminal cases: The primary purpose or office of an opening statement in a criminal prosecution is to apprise with reasonable succinctness the trier of facts of the questions involved and what the State or defense expects to prove so as to prepare the trier of facts for the evidence to be adduced. While the prosecutor should be allowed a reasonable latitude in his opening statement he should be confined to statements based on facts that can be proved and his opening statement should not include reference to facts which are plainly