Henry v. State

CHASANOW, Judge. Ian George Constantine Henry (Henry) was charged and indicted by a Grand Jury for five counts of murder, six counts of use of a handgun in the commission of a crime of violence, and one count each of attempted murder, assault with intent to murder, conspiracy to murder, conspiracy to rob, robbery with a deadly weapon, and theft over $300.00. He was tried in the Circuit Court for Prince George's County and was found guilty by a jury on all counts. On March 14, 1990, a capital sentencing proceeding was conducted before the same judge and jury.

The jury returned two sentences of death. The trial judge imposed four additional life sentences (three without the possibility of parole), as well as another 120 years incarceration. An appeal was taken to this Court pursuant to Maryland Rule 8-306(c). Henry has presented several questions for our review, relating to both the judgments of conviction and ²¹³ the sentence of death.

A brief synopsis of the evidence adduced at trial is necessary. The critical events that spawned this case occurred on January 22, 1988. In Bruce v. State, 318 Md. 706 , 569 A.2d 1254 (1990), an appeal by one of Henry’s co-defendants, we summarized substantially identical testimony given by the same witnesses that testified in the instant case regarding these events: “Colleen Grady (Ms. Grady) was with [Kirk Bruce] on January 22, 1988. Ms. Grady overheard part of a telephone conversation while [Bruce] was talking to Ian Henry (Henry).

In the conversation, [Bruce] mentioned two briefcases of money, ‘the Village in the Woods,’ ‘Chief,’ and ‘Donny.’ During the conversation Ms. Grady observed [Bruce] point his finger and exclaim T will kill him. Boom! Boom! ’ Several hours after this conversation occurred, police responded to a call of a shooting and entered an apartment at the Village in the Woods apartment complex in Landover, Maryland. There they found five dead bodies.

The body of Leonard Francis, also known as ‘Chief,’ was found next to his wheel chair in the dining room. Chief had three gunshot wounds including one execution style wound to the side of his head. Lloyd Chambers, also known as ‘Donny,’ was found in the kitchen dead as a result of six gunshot wounds including one in the back of the head. Next to Donny was the body of Everton Mitchell, who died as the result of a gunshot wound to the back of the head.

In a back bedroom, police found the bodies of Carlene Hamilton, also known as ‘Donna,’ with a gunshot wound to the top of her head, and Richard Williams, also known as ‘Ritchie,’ with eight gunshot wounds including one to the head. Police officers were met by Charmaine Chambers (Ms. Chambers) who had been shot twice in the head, but was still alive.” Id. at 712-13 , 569 A.2d 1254, 1257-58 . According to the testimony of Ms. Chambers, she was at the apartment of Leonard “Chief” Francis and Carlene ²¹⁴ Hamilton on January 22, 1988. Also present were Carl “Fabulous” Dunstrom, Richard Alexander Williams, Ever-ton Mitchell, Kirk Bruce, Lloyd George “Donny” Chambers, and Henry.

While in the back bedroom, Ms. Chambers heard gunfire coming from elsewhere in the apartment. Immediately thereafter, Williams ran into the bedroom in a desperate attempt to escape Henry, who was close behind him, wielding a handgun and firing shots. Ms. Chambers further testified that Henry shot her as well as Williams and Ms. Hamilton. When she fell to the floor, Ms. Chambers attempted to hold her breath, in the hope that her assailants would believe she was dead.

This effort proved futile, however, for Dunstrom entered the room, realized Ms. Chambers was alive, and shot her in the neck. Jacqueline Sellers, Dunstrom’s former girlfriend, testified that on January 22, 1988, Dunstrom, Bruce, Eddie Bell (Eddie), and Henry left a residence in Upper Marlboro, Maryland with guns “sometime late in the daytime,” saying that “they had business to attend to.” Later that evening, Eddie returned and told Ms. Sellers and Michelle Nelson (Bruce’s girlfriend) to pack and prepare to leave. Bruce, Dunstrom, and Henry returned, and the group drove to Virginia. Ms. Sellers testified that on the way to Virginia, Henry and Dunstrom discussed the killings, saying that “all of them” were dead.

She also stated that Henry had “about four guns” with him and put them on the floor of the car under her feet. The group checked into a motel in Virginia, where the men changed out of blood spattered clothes, put the soiled garments in plastic bags, and later disposed of them. Ms. Sellers further stated that when all of them were together watching television, a report of the “Landover murders” was broadcast on the evening news. When they heard the account, all four of the men began jumping, “dancing around and about, bragging about it,” and pretending that they were firing shots.

The group later traveled to Florida, stayed for about a week, and separated. Dunstrom and Ms. Sellers went to Brooklyn, New York, where Dunstrom was subsequently arrested. ²¹⁵ Ms. Sellers also testified that on several occasions in Virginia and Florida, she saw Henry in possession of a black leather briefcase “full of money.” Robert Williams, the brother of victim Richard Williams (Ritchie), testified that he worked for the drug organization directed by Chief. He stated that on the afternoon before the shootings, he had gone out on an errand for his brother to retrieve approximately $11,000, which he then delivered to Ritchie. He left Chief’s apartment around 6:00 p.m. on January 22, 1988.

While in the apartment, he had seen a black leather briefcase containing money. Henry was arrested on April 15, 1988 in the Bronx, New York. FBI Agent Charles Gianturco testified at trial that he had observed a gun on the floor of an open closet, approximately three to four feet away from Henry at the time of the arrest. The weapon was immediately seized.

We shall consider Henry’s contentions in the order in which they are raised in his brief. I. JURY SELECTION Henry contends that the trial judge erred during voir dire by striking from the panel, over Henry’s objection, two prospective jurors who answered affirmatively when questioned by the judge as to whether they had any “beliefs about the imposition of the death penalty ... that would make it very difficult ... to serve as a juror in this case in which the death penalty is sought.” Henry also asserts that the court improperly excused two other prospective jurors without permitting defense counsel to inquire further into those jurors’ ability to apply the law as instructed. A. Exclusion of Jurors Deslandes and Rhone Henry claims that there is nothing in the record to support the trial court's action of excusing prospective jurors Deslandes and Rhone for cause and therefore, Henry’s federal and state constitutional rights were violated. Henry maintains that although these two prospective jurors had misgivings about the possible imposition of a death ²¹⁶ sentence, each juror’s concern would not have “ ‘prevented] or substantially impair[ed] the performance of his duties as a juror in accordance with his instructions and oath.’ ” Wainwright v. Witt, 469 U.S. 412, 424 , 105 S.Ct. 844, 852 , 83 L.Ed.2d 841, 851-52 (1985) (quoting Adams v. Texas, 448 U.S. 38, 45 , 100 S.Ct. 2521, 2526 , 65 L.Ed.2d 581, 589 (1980)).

We disagree. The statements made by both Deslandes and Rhone indicate that the trial court had sufficient cause to believe the men could not discharge their duties as jurors effectively or impartially. Prospective juror Deslandes testified as follows: MR. DESLANDES: I apologize for my bad English.

I don’t know how to say it, but I have to say something. As a Christian, I’m a Seventh Day Adventist. I don’t know how to handle this kind of trial, you know. I don’t know how to put God’s law in and man in the same bag.

It is very hard for me to judge a situátion like that. THE COURT: All right. Do you think you are just as qualified as all of those people sitting back there to make a decision based on the facts and circumstances? MR.

DESLANDES: I feel confused, you know, I don’t know how to handle that. THE COURT: ... Let me ask you this. If based on the facts of this case you felt that the evidence in this case warranted the imposition of the death penalty after I explain the law to you in regards to the facts, do you think that you could then impose the death penalty?

MR. DESLANDES: You see I have a conflict. THE COURT: What is your conflict? MR.

DESLANDES: My conflict is that there was a murder, okay? Someone was killed. Now, to repair that I’m going to kill another? ²¹⁷ On the other hand, let the guy be free to kill again? I don’t know, it is confusing for me.

I don’t feel comfortable to face this kind of trial. THE COURT: Do you think based on the evidence in this case you could find him guilty or not guilty? Do you have any problem on that? MR.

DESLANDES: I’m not sure. THE COURT: What problem would you have? MR. DESLANDES: To understand why, you know.

THE COURT: Finding him guilty or not guilty has nothing to do with the sentence in this case. Do you think you would have any problems? MR. DESLANDES: Another thing is emotionally I think sometimes I can be biased.

THE COURT: What does that mean? MR. DESLANDES: You don’t know. It is hard to explain.

THE COURT: What does that mean? MR. DESLANDES: Sometimes I go by emotionally, you know. After that I’m not too sure I did the right decision. ...

In this case I’m not sure. I never thought I would one day be serving in this kind of thing. You see my situation? Probably not.

Similarly, prospective juror Rhone indicated that he would not be able to impose a sentence of death. THE COURT: All right, Mr. Rhone, what do you want to tell me? MR. RHONE: I don’t have a whole lot in the form of explanation, it is just that I don’t have a problem with saying yea or nay to guilt or innocence because based on the information I hear.

It is just if it comes down to a death sentence I don’t believe I could do that. I have never seen where it has solved anything. If it had we wouldn’t be here. I just—the thought of possibly being the 12th person when 11 others are in agreement and I’m the one in ²¹⁸ disagreement, and being put in the position to go along for a verdict I just couldn’t do that.

THE COURT: Can you think of any case where you could do it? MR. RHONE: I would have to be totally convinced and I’m not sure that’s possible. THE COURT: Let me ask you this in regards to what you have said.

If you were totally convinced based on the facts of this case and the law as I explained it to you that the death penalty should be imposed, could you then impose the death penalty? MR. RHONE: I don’t think so. I just don’t see where it served any purpose in the past.

Like I said, we wouldn’t be here. I’m sorry if that is a lousy explanation. In Hunt v. State, 321 Md. 387 , 583 A.2d 218 (1990), we discussed the Supreme Court’s determination in Witherspoon v. Illinois, 391 U.S. 510, 522 , 88 S.Ct. 1770, 1776-77 , 20 L.Ed.2d 776, 785 , reh’g denied, 393 U.S. 898 , 89 S.Ct. 67 , 21 L.Ed.2d 186 (1968), “that a prospective juror could not be excluded for cause from a case simply because the juror expressed a general objection to the death penalty.” Hunt, 321 Md. at 414 , 583 A.2d at 231 . The Witherspoon Court further stated that if jurors make it “unmistakably clear that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial,” then they may properly be excluded for cause.

Witherspoon, 391 U.S. at 522 n. 21, 88 S.Ct. at 1777 n. 21, 20 L.Ed.2d at 785 n. 21. (Emphasis in original.) The Supreme Court has since modified this holding by refusing to engage in a “ritualistic adherence” to the language of Witherspoon. See Wainwright, 469 U.S. at 419 , 105 S.Ct. at 849 , 83 L.Ed.2d at 848 . The standard adopted by the Supreme Court is whether the juror’s “views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Id. at 420 , 105 S.Ct. at 850 , 83 L.Ed.2d at 849 (quoting Adams v. Texas, 448 U.S. at 45 , 100 S.Ct. at 2526 , ²¹⁹ 65 L.Ed.2d at 589 ).

We acknowledged and applied this standard in Grandison v. State, 305 Md. 685, 725 , 506 A.2d 580, 600 , cert. denied, 479 U.S. 873 , 107 S.Ct. 38 , 93 L.Ed.2d 174 (1986). The result of this application was that the “trial judge’s factual determination about the extent of a juror’s bias must be given deference,” for “the prospective juror’s bias need not be proven with unmistakable clarity before the juror could be excused for cause.” Hunt, 321 Md. at 415 , 583 A.2d at 231 . We should give deference to the decision of the trial judge in the instant case. As is evinced by the record, the trial judge asked the two prospective jurors whether they could serve on the jury without bias and whether they could apply the law according to the court’s instructions.

Juror Deslandes stated that he could be biased and emotional and expressed misgivings as to whether he could determine guilt or innocence in this case. Juror Rhone doubted whether he ever could impose a death sentence. Under these circumstances, we cannot say that the trial judge committed error when he excused these two jurors. B. Exclusion of Prospective Jurors Lopez and Smith During voir dire, the trial judge propounded additional questions to the jurors who had indicated that they would find it “very difficult” to impose the death penalty.

Juror Lopez responded that she was opposed to capital punishment “under all circumstances.” Thereafter, she was excused. Juror Smith expressed serious reservations about the death penalty and, in response to the judge’s question, “Are there any circumstances that you can think of where you might impose the death penalty,” she replied, “I can’t think of any.” When the judge excused Ms. Smith, Henry’s counsel objected and sought to rehabilitate the juror by suggesting to the court: “You can ask the jurors, for example, if they found the people that bombed that Pan Am flight, if they can impose the penalty in that situation, if they could discuss other situations. I think just the category because they ²²⁰ say they can’t impose the death penalty doesn’t mean under all circumstances. They may admit to the Court that they could then follow the instructions as to the law in this case.” Henry now claims that reversible error was committed by the trial judge.

He asserts that it was an abuse of discretion to refuse to permit the defense to rehabilitate Lopez and Smith by additional inquiry into their ability to apply the law as instructed. We fully discussed the nature of and guidelines for voir dire in Bedford v. State, 317 Md. 659, 670-75 , 566 A.2d 111, 116-19 (1989), and noted that there are no rigid rules governing the inquiry process. See also Bowers v. State, 298 Md. 115, 145 , 468 A.2d. 101, 117 (1983), appeal after remand, 306 Md. 120 , 507 A.2d 1072 , cert. denied, 479 U.S. 890 , 107 S.Ct. 292 , 93 L.Ed.2d 265 (1986). It is not necessary to duplicate that discussion here. “[T]his Court has determined that the nature and extent of [voir dire ] lies solely within the sound discretion of the trial judge.” Bedford, 317 Md. at 670 , 566 A.2d at 116-17 .

Furthermore, Maryland Rule 4-312(d) states that after the court has questioned the potential jurors, it may allow the parties to supplement the examination with additional questions. There is no requirement that, once the court has determined that a juror should be excused for cause, it must allow a party to continue questioning that juror. In fact, “the court may frame its own questions and not permit cross-examination by counsel[.] [T]he extent of the examination rests in the sound discretion of the court, and the purpose of the inquiry is to ascertain ‘the existence of cause for disqualification and for no other purpose.’ ” Bowers, 298 Md. at 146 , 468 A.2d at 117 (quoting McGee v. State, 219 Md. 53, 58-59 , 146 A.2d 194, 196 (1959), in turn quoting Adams v. State, 200 Md. 133, 140 , 88 A.2d 556, 559 (1952)); Emery v. F.P. Asher, Jr., & Sons, Inc., 196 Md. 1, 8 , 75 A.2d 333, 336 (1950). Although a defendant has the right to prove a juror is biased, Dennis v. United States, 339 U.S. 162 . 171-72. 70 S.Ct. 519 . 523. 94 L.Ed. 734 . 742 ²²¹ (1950), after the judge makes a finding of bias the defendant does not have the right to further examination to attempt to prove that the judge was wrong and the juror was not biased.

The trial court did not commit reversible error by refusing to ask Ms. Smith the “Pan Am” question proposed by Henry’s counsel. 1 The court may, in its discretion, refuse to ask questions that it deems are speculative or insufficiently tailored to the particular case at issue. See Bowers, 298 Md. at 146 , 468 A.2d at 117 . Henry seeks to bolster his argument with Rougeau v. State, 651 S.W.2d 739 (Tex.Crim.App.1982); however, his confidence is misplaced. In Rougeau , the appellate court found that the trial judge had committed reversible error when he excused a juror who had expressed reservations about the death penalty without permitting defense counsel sufficient opportunity to rehabilitate the juror.

The juror in Rougeau , however, is critically different from jurors Lopez and Smith in the instant case. In Rougeau , the juror clearly stated that she could render a verdict according to the law and the evidence presented, even if that resulted in the imposition of a death sentence. Id. at 741 . Lopez and Smith could make no such statements.

The trial court did not abuse its discretion by excusing Ms. Lopez and Ms. Smith from the jury.

II

HENRY’S ABSENCE FROM SEVERAL BENCH CONFERENCES Henry next contends that the trial judge denied or “chilled” his right to be present at some bench conferences during trial. He claims that his counsel could not waive his right to be present at the bench conferences and that the trial judge, expressly or impliedly, indicated that Henry was ²²² not welcome at the conferences, thereby effectively chilling “Henry’s exercise of the fundamental constitutional right to be present at all critical stages of his trial.” By this characterization, we assume Henry is referring to his rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, as well as Article 5 of the Maryland Declaration of Rights. Henry claims that his counsel “unequivocally wanted Mr. Henry present with him at bench conferences” and that even if we interpret some of his counsel’s actions as constituting a waiver, his counsel did not have the authority to execute such a waiver. Henry had no federal or state constitutional right to be present at bench conferences that were not critical stages of the trial.

See Porter v. State, 289 Md. 349 , 424 A.2d 371 (1981); Brown v. State, 272 Md. 450 , 325 A.2d 557 (1974). The right of a defendant to be present “has been held not to extend to ... brief bench conferences with attorneys conducted outside the defendant’s hearing, and to various other conferences characterized as relating only to the resolution of questions of law.” (Emphasis added.) W. LaFave and J. Israel, 3 Criminal Procedure § 23.2(c) at 3 (1984, 1991 Cum.Supp.). See People v. Teitelbaum, 163 Cal.App.2d 184 , 329 P.2d 157, 172 , (1958), appeal dismissed, cert. denied, 359 U.S. 206 , 79 S.Ct. 738 , 3 L.Ed.2d 759 (1959) (appellant’s presence at bench conference would not have been of any aid to his counsel since the topics discussed were questions of law); State v. Peters, 146 Mont. 188 , 405 P.2d 642, 647 (1965). See generally W. LaFave and J. Israel, 3 Criminal Procedure § 23.2 (1984 & 1991 Cum.

Supp.); Annotation, Right of Accused to be Present at Suppression Hearing or at Other Hearing or Conference between Court and Attorneys Concerning Evidentiary Questions, 23 A.L.R.4th 955 , 1008-11 (1983). Henry stresses in his brief that, according to Hughes v. State, 288 Md. 216 , 421 A.2d 69 (1980), under common law, a defendant has a right to be present at every critical stage of trial and that this right is personal, incapable of being waived by counsel. In Williams v. State, 292 Md. 201, 438 ²²³ A.2d 1301 (1981), however, we modified this common law rule for all future cases. “Today, with the complexity of many criminal trials and the absolute right of counsel if there is a danger of incarceration, our system proceeds upon the assumption that it is primarily counsel’s function to assert or waive most ‘rights’ of the defendant. Unless a defendant speaks out, normally he must be bound by the trial decisions, actions and inactions of counsel.

Otherwise, the system simply would not work.” (Citations omitted.) Id. at 218, 438 A.2d at 1309 , quoted in Noble v. State, 293 Md. 549, 555 , 446 A.2d 844, 847 (1982). We proceeded to revise the rule: “[A]n effective waiver of the defendant’s right to be present at every stage of the trial will not always require a personal waiver by the defendant. Where the right of confrontation is not implicated, and where there is involved no other right requiring intelligent and knowing action by the defendant himself for an effective waiver, a defendant will ordinarily be bound by the action or inaction of his attorney. [I]f the defendant himself does not affirmatively ask to be present at such occurrences or does not express an objection at the time, and if his attorney consents to his absence or says nothing regarding the matter, the right to be present will be deemed to have been waived.” Williams, 292 Md. at 219-20 , 438 A.2d at 1310 , quoted in Noble v. State, 293 Md. at 556 , 446 A.2d at 847 . Maryland Rule 4-231 speaks directly to the issue of presence of the defendant at trial. 2 Under Rule 4-231, a ²²⁴ defendant does not have a right to be present at a bench conference if the subject matter being discussed is a question of law or if the conference is not considered a “stage of the trial.” In addition, a defendant’s counsel may, through acquiescence, waive the defendant’s right to be present.

Id. There were numerous bench conferences throughout the trial, some of which Henry refers to in his brief when discussing the “chilling” of his right to be present at all stages of his trial. 3 Henry, through his counsel and in accordance with Md.Rule 4-231, waived his right to be present at several of the bench conferences. An example of this waiver is illustrated in the following colloquy regarding the anticipated testimony of Ms. Sellers: DEFENSE COUNSEL: I think [the State’s Attorney] had something to display to the jury. After he does that I would request to come to the bench before the next witness comes up.

THE COURT: Come on up now. (At the Bench.) STATE’S ATTORNEY: Do you want your client at these bench conferences? DEFENSE COUNSEL: No. Similarly, the defense sought to preclude Kenneth Clee from testifying to statements made by the defendant after the murders. THE COURT: Come on up, gentlemen.

(At the Bench.) STATE’S ATTORNEY: Do you want your client up here? DEFENSE COUNSEL: No. ²²⁵ THE COURT: I don’t need his client. Why do you keep asking him that? STATE’S ATTORNEY: I just want to prevent a claim later on that he didn’t get to participate in some bench conference that was affecting his rights.

As long as they are willing to waive his presence I will stop asking. THE COURT: Is there some case that says he is entitled to be up here? STATE’S ATTORNEY: There is a case that says he is entitled to be present at every critical stage of the proceeding. THE COURT: Anything else?

STATE’S ATTORNEY: I assume a bench conference sometimes falls within that category. THE COURT: Is there a case that says a bench conference is a critical stage? STATE’S ATTORNEY: I think there may be, yes. THE COURT: Is there a case that says voir dire —never mind.

What do you want? Henry was specifically invited to be present at some of the bench conferences. For instance, the trial judge expressly directed Henry to approach the bench in order to firmly establish the validity of Henry’s election not to testify. The judge concluded his inquiry and the following occurred: THE COURT: Anything else that you wanted to tell me, Mr. Henry? [HENRY]: No, Your Honor. [Apparently counsel and Henry returned to their seats.] THE COURT: All right, fine.

Come on back up now and leave Mr. Henry there. At this point, the judge had a discussion with counsel concerning jury instructions. On more than one occasion, the trial judge made it clear that he did not want Henry to participate in a particu ²²⁶ lar bench conference. For example, during the testimony of Ms. Chambers, the following took place: THE COURT: Come on up.

(At the Bench.) STATE’S ATTORNEY: Do you want your client up here? DEFENSE COUNSEL: Yes. THE COURT: I don’t want him up here. DEFENSE COUNSEL: That’s fine.

STATE’S ATTORNEY: He waives his presence to be here? THE COURT: He doesn’t have any right to be here, all right? Go ahead. (Emphasis added.) Although we do not condone the action of the trial court in making it clear that Henry wasn’t welcome at bench conferences, Henry has not demonstrated that the judge committed reversible error.

There is no reason why Henry’s counsel could not have objected for the record whenever he thought the court was unfairly barring his client from participating in any specific bench conference. Counsel’s silence and Henry’s acquiescence may be taken as a waiver of any right Henry might have had to participate in the various bench conferences, unless his due process rights required his presence. The Supreme Court discussed a defendant’s due process right to be present in Kentucky v. Stincer, 482 U.S. 730 , 107 S.Ct. 2658 , 96 L.Ed.2d 631 (1987). The Court explained that “even in situations where the defendant is not actually confronting witnesses or evidence against him, he has a due process right ‘to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.’ Snyder v. Massachusetts, 291 U.S. 97, 105-106 , 54 S.Ct. 330 , 78 L.Ed. 674 (1934).

Although the Court has emphasized that this privilege of presence is not guaranteed ‘when presence would be useless, or the benefit but ²²⁷ a shadow/ id. at 106-107 [ 54 S.Ct. at 332-333 ], due process clearly requires that a defendant be allowed to be present ‘to the extent that a fair and just hearing would be thwarted by his absence/ id. at 108 [ 54 S.Ct. at 333 ]. Thus, a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” (Emphasis added.) Id. 482 U.S. at 745 , 107 S.Ct. at 2667, 96 L.Ed.2d at 647 . See also United States v. Gagnon, 470 U.S. 522, 526-27 , 105 S.Ct. 1482, 1484-85 , 84 L.Ed.2d 486, 490-91 (defendant’s absence from judge’s in camera discussion with juror held not violative of due process right), reh’g denied, 471 U.S. 1112 , 105 S.Ct. 2350 , 85 L.Ed.2d 865 (1985). In his brief, Henry argues that the court’s initial act of barring him from the bench conference improperly “chilled” his right to participate in subsequent bench conferences.

He does not argue or establish that his presence at any specific bench conference would have contributed to the fairness of the procedure. 4 We caution trial judges not to exclude a defendant from any bench conference where the defendant’s presence could contribute to the fairness of the proceedings or from any bench conference that could constitute a critical stage of the proceedings unless the defendant’s presence is waived. But we also reiterate what we have previously stated: “We are fully cognizant of the necessity of conferences between the court and counsel—either before or during a trial—for the purpose of discussing scheduling, other collateral matters of procedure, to hear arguments of law on evidentiary rulings, to confer on proposed instructions to the jury, and the like. Under the authorities herein- ²²⁸ before cited such conferences have not been held to be a part of the trial. To require that all such conferences be conducted in open court, or that the defendant be present in chambers, or at a bench conference, on each occasion would create administrative burdens, diminish the decorum of the proceedings, and in many instances involve security risks—none of which can be balanced by any gain from the defendant’s presence.

Trials must, however, not only be fairly conducted but must, to the defendant, give every appearance of so being conducted.” (Footnote omitted.) Brown v. State, 272 Md. at 479-80 , 325 A.2d at 572-73 .

III

THE STATE’S CLOSING ARGUMENT Henry asserts that the State improperly implied in its rebuttal closing argument that Henry had “some obligation to provide a ‘theory’ ” on which to base his defense. The State maintains that it was merely rebutting statements made in the defense’s closing argument. Defense counsel related the following in closing argument: “The possibilities and the theories that you can come up with as a result of that ballistics evidence on that chart is almost endless. That brings me ... to the theory that you heard [the State’s Attorney] enunciate a few minutes ago.

That theory, ladies and gentlemen, that somehow this man [Henry] was running down the hall with not one gun, not two guns, but three guns, that theory, ladies and gentlemen, is the exact reason why Judge Levin told you, and why most of the lawyers tell you in opening statements that opening statements and closing arguments are not evidence. Because that did not come from that witness stand, and it didn’t come from any other physical exhibits that were introduced in this case. That is a theory that can be manufactured out of this evidence just like any other theory, or any other group of theories that you could manufacture out of this evidence. ²²⁹ I can stand here and point out four or five of them but I will not adopt any of them. My point is to show you the uncertainty and the inconclusiveness of the evidence that was presented to you in that ballistics report.

That theory holds no more weight than any of the other theories you can come up with, and you can’t convict somebody of five counts of first degree murder based on a theory because it may have happened that way.” The prosecutor responded to these comments during rebuttal: “Ladies and gentlemen, I didn’t make up a theory out of thin air and present it about ballistics. [Defense Counsel], if you don’t like my theory and you come up with a theory, then let’s see how it flies. Let’s put our theories before these good people and let them decide. I didn’t hear his theory. I put a theory before you, ladies and gentlemen, based upon the evidence in this case, and I am willing to let you examine it and stand here and stand by it.

If you reject my theory, fine, so be it, but I put it up here. I submit to you that it is based upon the evidence in this case. It is not something that was dreamed up. If they have a theory I’m more than willing to hear it.” At this point, defense counsel objected and the trial court overruled the objection.

A cautionary instruction to the jury was neither requested nor given. The Supreme Court, in Herring v. New York, 422 U.S. 853 , 95 S.Ct. 2550 , 45 L.Ed.2d 593 (1975), discussed the purpose and importance of closing arguments: “It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries’ positions.

And for the de ²³⁰ fense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant’s guilt. The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” (Citations omitted). Id. at 862 , 95 S.Ct. at 2555 , 45 L.Ed.2d at 600 . There can be no dispute that during summation, counsel may “state and discuss the evidence and all reasonable and legitimate inferences which may be drawn from the facts in evidence.” 5 Wilhelm v. State, 272 Md. 404, 412 , 326 A.2d 707, 714 (1974).

Summation provides counsel with an opportunity to creatively mesh the diverse facets of trial, meld the evidence presented with plausible theories, and expose the deficiencies in his or her opponent’s argument. Although the scope of what may be said in closing is not boundless, “such comment or argument is afforded a wide range.” Id. There are limits to a prosecutor’s creative license, 6 and a trial judge has discretion to set appropriate boundaries. As the Supreme Court recognized in Herring , ²³¹ “[t]his is not to say that closing arguments in a criminal case must be uncontrolled or even unrestrained.

The presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. He may limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant. He may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects he must have broad discretion.” Herring, 422 U.S. at 862 , 95 S.Ct. at 2555 , 45 L.Ed.2d at 600 .

The inference of any impropriety occurring in closing arguments “must of necessity rest largely in the control and discretion of the presiding judge and an appellate court should in no case interfere with that judgment unless there has been an abuse of discretion by the trial judge of a character likely to have injured the complaining party.” (Emphasis in original.) Wilhelm, 272 Md. at 413 , 326 A.2d at 714-15 ; see also Collins v. State, 318 Md. 269, 279 , 568 A.2d 1, 6 , cert. denied, — U.S.-, 110 S.Ct. 3296 , 111 L.Ed.2d 805 (1990); Esterline v. State, 105 Md. 629, 637 , 66 A. 269, 272 (1907). See generally, F. Celebrezze, Prosecutorial Misconduct: Quelling the Tide of Improper Comment to the Jury, 35 Clev.StL.Rev. 237 (1986-87). Even when a prosecutor has made an inappropriate remark during summation, a reversal is not automatically warranted. Chief Judge Murphy (then Chief Judge of the Court of Special Appeals) explained in Reidy v. State, 8 Md.App. 169 , 259 A.2d 66 (1969): ²³² Id. at 172 , 259 A.2d at 67-68 , quoted in Collins, 318 Md. at 280, 568 A.2d at 6 and Wilhelm, 272 Md. at 415-16 , 326 A.2d at 716 ).

In determining whether reversible error occurred, an appellate court must take into account “1) the closeness of the case, 2) the centrality of the issue affected by the error, and 3) the steps taken to mitigate the effects of the error.” Collins, 318 Md. at 280 , 568 A.2d at 6 . ²³¹ “[T]he fact that a remark made by the prosecutor in argument to the jury was improper does not necessarily compel that the conviction be set aside. ‘The Maryland Rule is that unless it appears that the jury were actually misled or were likely to have been misled or influenced to the prejudice of the accused by the remarks of the State’s Attorney, reversal of the conviction on this ground would not be justified.’ ” (Citations omitted.) ²³² Henry contends that the State’s argument created the impression that the defense had some obligation to prove a “theory” of the case. He complains that “to call upon the defense to provide the jury with its theory of the case is to indicate that the defense carries a burden which the law does not impose.” We do not find that the prosecutor suggested that Henry had the burden to prove any element of the charges against him. The court thoroughly instructed the jury on the State’s burden of proof and told them that their verdicts should be based on the evidence. When viewed in its entire context, the prosecution’s rebuttal in the instant case does not warrant a finding of reversible error.

The State’s Attorney was responding directly to remarks made by defense counsel in closing argument and was asking the jury to accept his theory of the case. See Denny v. State, 404 So.2d 824, 826 (Fla.App. 1981). The judge properly instructed the jury on the applicable law, including the State’s burden of proof. The prosecutor’s rebuttal remarks could not have misled or prejudicially influenced the jury.

IV

REFUSAL TO ALLOW DEFENSE TO CONDUCT DISCOVERY DURING CROSS-EXAMINATION OF STATE’S WITNESS Henry claims he was prevented from establishing that a “discoverable prior statement of an important witness was in existence.” Prosecution witness Robert Williams testified that he was interviewed by a Prince George’s County Police detective regarding the murders. During cross-examination, Williams stated that he did not write anything ²³³ down during the interview. When defense counsel asked whether the detective took notes during the interview, the prosecutor objected. The court sustained the objection, but the witness nonetheless proceeded to answer in the affirmative.

The following bench conference ensued: DEFENSE COUNSEL: I just want to put a proffer on the record. What I think he would say is that the officer did in fact write down what he was saying, and in fact I think he may say or will say the officer even had him review it from time-to-time. In effect, to make sure that it was accurate. I just think we need to put on the record at this time that if such statements exist we have never been provided with those statements.

I want to put that on the record and make it clear to the Court and enter our objection to that at this time. THE COURT: All right, fine. It is all on the record. Ask him another question.

STATE’S ATTORNEY: May I put the State’s proffer on the record since this is obviously an appellate issue and was raised in the Kirk Bruce case? The proffer is that the Defense has been provided with all written statements, Grand Jury testimony, prior testimony from the Kirk Bruce trial. I am not aware of any written statements made to the police. Nor am I aware of any statements that he adopted as his own, nor do I have any statements that he signed.

What they are talking about are police officer notes. That is my proffer. THE COURT: It is all on the record. Let’s go.

In Bruce v. State, we discussed whether the detective’s notes taken during this same interview with Robert Williams were discoverable. Williams testified at the Bruce trial that he “may have reviewed and approved portions of the detective’s notes,” but “did not read, sign, or otherwise adopt or approve all of the detective’s notes of the interview.” Bruce, 318 Md. at 723 , 569 A.2d at 1263 . We looked to the Jencks Act, 18 U.S.C. § 3500 (1985) for ²³⁴ guidance in determining which prior witness statements must be made available to the defense after a State’s witness has testified on direct examination. The Jencks Act defines a discoverable statement as: “(1) A written statement made by said witness and signed or otherwise adopted or approved by him; (2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement____” We found in Bruce that the trial judge did not err by declining to oblige the State to furnish the detective’s notes to the defense.

Bruce, 318 Md. at 724 , 569 A,2d at 1264 . In the instant case, Henry protested that he was not provided with the same notes taken by the detective during Williams’ interview “if such statements exist,” and now asserts that he was prevented from determining whether, in fact, there was such