Hill v. State

WILNER, Judge. The question before us is whether, despite concluding that a prosecutor’s closing argument was improper and subject to objection, the Court of Special Appeals erred in holding that the denial of petitioner’s motion for mistrial based on that impropriety was not preserved for appellate review because the motion was not made until after the jury left the courtroom to deliberate. Our answer to that question, on the facts of this case, is “yes.” In his brief, petitioner seeks to enlarge the issue and have us resolve the complaint that the Court of Special Appeals declined to address—that the trial court abused its discretion in denying the motion. As that issue was not raised in his petition for certiorari, however, it is not before us.

BACKGROUND While conducting surveillance of an area in Prince George’s County known for frequent open-air drug sales, Corporal Alvin Sanders observed a station wagon parked on a restaurant parking lot. He saw at least two individuals approach the driver’s side and exchange objects with the driver, whom he later identified as petitioner, Delton Hill, but could not see what was exchanged. When Hill drove away, Sanders fol ²¹⁰ lowed. After observing Hill proceed through a stop sign without stopping, Sanders executed a traffic stop which, because of concern over the conduct of one or more of the passengers in the rear seat of Hill’s car, grew into a felony stop, involving backup units.

A subsequent search of the car revealed a handgun protruding from under the driver’s seat, a brown medicine bottle containing suspected crack cocaine in the front console, and two “rocks” of suspected cocaine on the floor beneath the back seat. According to Sanders, following his arrest, Hill admitted that the gun was his and that he kept it for protection. Hill was charged with transporting a firearm after having been convicted of a felony, in violation of Maryland Code, Article 27, § 291A(b)(l), possession of a firearm after having been so convicted, also in violation of that section, and possession of cocaine. A jury in the Circuit Court for Prince George’s County convicted Hill of the first two counts, dealing with the firearm, but was unable to reach a verdict on the cocaine possession charge.

The court merged the two convictions and sentenced Hill on the first count to four years imprisonment. Only two witnesses testified, both called by the State. Corporal Sanders testified as noted above, but said that he made his observations from his cruiser parked some distance—he estimated about 2,000 feet—away, using binoculars. It was just before 9:00 on a February night, although the parking lot area was well-lit from outside lighting.

Although defense counsel noted that Sanders had not mentioned Hill’s admission regarding the gun in the officer’s report, counsel did not otherwise impeach that admission. He did, however, cross-examine Sanders at some length regarding the officer’s ability to see, from such a distance—more than the length of six football fields—the drug transactions he claimed to have seen. The State’s second witness was Kevin Barnett, a friend of Hill. Barnett said that Hill picked him up, that they drove to the restaurant and went in for about five minutes to buy food, that when they returned to the car several people approached from both the driver’s and passenger’s side, that two people asked for a ride and got into the car, and that they ²¹¹ then left.

He said that he never saw Hill in possession of either drugs or a gun and that he saw no drug transactions during the time he was with Hill. Barnett was not a helpful witness for the State. 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.

He commenced his opening statement by noting that his broken foot would mend but wondering if society would mend—“[sjociety full of people like Mr. Hill who carry guns and drugs.” An objection to that remark was sustained. In the next breath, however, he continued that “[o]ne only needs to read the paper to know what that does to our community.” An objection to that also was sustained. After very briefly recounting the events leading to the officer’s stop of the car, he told the jury, “what happens next is why you are here and why you’ve been chosen to send a message to protect our community.” (Emphasis added.) Objection sustained. Undeterred, he completed his opening statement by telling the jury that “[i]n the end, we’re going to ask you to do the just thing, the right thing, the thing that protects all of us and keeps this community safe.” Objection sustained.

On that performance alone, Hill moved for a mistrial, which the court denied in favor of informing the jury that opening statements were not supposed to be argument and that the jury should not consider anything that the court declared objectionable. The assault resumed when the prosecutor began his closing argument, the relevant portion of which was as follows: “MR. JOHNSON: Thank you, Your Honor. Good morning, ladies and gentlemen.

Defense counsel yesterday I suppose wanted to make the State feel guilty because we ²¹² mentioned the community of which you are a part. It is your community, and it is important. What you do here today sends a message, whatever you decide. And make no mistake about it; Delton Hill will go back and tell his cronies and buddies about what is going on here today.

MR. WOOD: Objection, Your Honor. THE COURT: Overruled. This is argument.

MR. JOHNSON: So, what you do here today is extremely important. Perhaps defense counsel is lucky enough to go home to Potomac or River Road— MR. WOOD: Objection.

THE COURT: Sustained. MR. JOHNSON:—but people here in Prince George’s County are in crisis. Whether you’re in Greenbelt, Accokeek, Adelphi, Largo, it doesn’t matter, because Prince George’s County is in a crisis.

MR. WOOD: Objection, Your Honor. THE COURT: Sustained. MR.

JOHNSON: People wonder why we can’t get 4-star restaurants here. MR. WOOD: Objection, Your Honor. THE COURT: Sustained MR.

JOHNSON: People like Delton Hill. This case is about accountability. Will he be held accountable, or is it okay to say, do what you want? It’s your community.

No, it’s not your community; it’s our community. This is your turn to do something about it. MR. WOOD: Objection, Your Honor.

THE COURT: Overruled.” Defense counsel retorted that he did not live in Potomac, an affluent Washington suburb, but in the District itself, and he suggested that the prosecutor’s recurring references to “take back your community” were an indication that he did not want the jury to decide the case on the evidence, because he had no evidence. The prosecutor sent “these subliminal messages” because he did not want to talk about the facts. In rebuttal, ²¹³ the prosecutor responded to counsel’s attack on the State’s evidence, interspersing his argument with such remarks, to which objections were sustained, as “[b]ut defense lawyer, in his attempt to get him off’ and “his buddy, who is still here today cheering him on.” Apparently unable to resist the urge, he ended his argument: “What message will you send Delton Hill? Is it, it’s your community, do whatever you want ...

Or is it your community?” Hill objected to that last remark, but the objection was not ruled upon. Instead, the court immediately excused the alternate juror, swore the bailiff, and sent the jury to deliberate. The transcript shows that the bailiff was sworn at 11:23 a.m., and that the jury retired one minute later, at 11:24. Counsel promptly, to “complete the record,” moved for a mistrial based on the closing argument of the State regarding “sending a message.” 1 The court denied the motion, stating as its reason that it had sustained counsel’s objections and told the jury that closing arguments were not evidence.

That matter took three minutes. The transcript shows that, immediately upon denying the motion, the court went into recess, at 11:27 a.m. The jury sent out a note at 12:02, and the parties and the court gathered briefly to deal with it. After being excused for lunch, at about 12:30, the jury resumed its deliberations and, at some point just before 4:51 p.m., it informed the court that it had reached a verdict on the first two counts, but not on the third.

Hill complained again of the prosecutor’s conduct in a motion for new trial, arguing that, unlike the situation regard ²¹⁴ ing the reception of evidence, when the sustaining of an objection precludes the jury from hearing and being tainted by the improper evidence, the damage from the prosecutor’s improper remarks was done- before an objection could be lodged. He urged that the case was a close one, evidenced in part by the fact that the jury could not agree on whether Hill was in possession of the cocaine found in the car, and he stressed the persistence of the prosecutor’s prejudicial conduct and its effect on diverting the jury’s attention from the evidence to the “gut level reaction” that “[y]ou let this man off, you are hurting your community.” The court denied the motion, noting: “The majority of the objections raised by defense counsel in the State’s closing argument were sustained by me. And in exercising my function as the trial Judge, and my review and recollection of what occurred during the course of this trial, I do not find that this Defendant did not receive a fair trial.” In his appeal to the Court of Special Appeals, Hill complained about the denial of his motions regarding both the State’s opening statement and closing argument. With respect to the former, the intermediate appellate court, in its unreported opinion affirming the judgment, agreed that the prosecutor “should not have asserted that the jurors were chosen to send a message that would protect the community,” but held that the trial judge “saved the situation for the [Sjtate” by ruling promptly and decisively that the jury was not to consider that improper remark.

With respect to the motion based on the State’s closing argument, the court determined: “Whether appellant was entitled to a mistrial as a result of the prosecutor’s final and/or rebuttal argument is an issue that has not been preserved for our review. Objections to improper argument must be ‘interposed either (1) immediately after the allegedly improper comments are made, or (2) immediately after the argument is completed.’ Grier v. State, 116 Md.App. 534, 545 [ 698 A.2d 1133 ] (1997). Appellant had a valid objection to the prosecutor’s request that ²¹⁵ jurors consider their own interests. Such a ‘golden rule’ argument is inappropriate.

Holmes v. State, 119 Md.App. 518, 527 [ 705 A.2d 118 ] (1998). Had the motion for mistrial been made before the jurors were excused from the courtroom, Judge Spellbring would have been positioned to deliver another curative instruction and/or take other appropriate action (e.g. admonish the prosecutor) short of declaring a mistrial.” Having made that finding, the Court of Special Appeals went on to disapprove of the prosecutor’s “intemperate appeals to class prejudice and passion,” but returned, in the end, to its determination, which was dispositive, that “had he been requested to do so before deliberations began, Judge Spellbring would have yet again (1) evaluated the harm caused by the prosecutor’s unfair arguments, and (2) taken the curative steps necessary to prevent injustice.” That, the court held, “is why we shall not'order a newr trial in this case.” In his petition for certiorari, petitioner raised the single question, “[w]hether the Court of Special Appeals erred in ruling that a motion for mistrial, made after the jury retired to deliberate, on the basis of prosecutorial misconduct during closing argument, was properly denied because untimely.” DISCUSSION The first thing we need to do is to restate the question raised by petitioner in order for it to conform to the facts. The Court of Special Appeals did not rule that the motion was properly denied because it was untimely. The trial judge did not deny the motion because it was untimely, but because he believed that it had no merit—that, in light of his advice to the jury to disregard statements to which objections had been sustained, petitioner was not entitled to a mistrial.

The issue of timeliness arose only in connection with whether petitioner’s complaint about the trial judge’s ruling was preserved for appellate review. Though affirming the ultimate judgment, as the issue of the prosecutor’s opening statement was addressed on its merits, the appellate court did not affirm the trial ²¹⁶ judge’s ruling relating to the improper closing argument, but rather declined to address it on the ground that the complaint over that argument was not preserved. Our recasting of the issue in this manner, given the facts of the case, does not amount to a material change in the issue. It does, however, point up a fallacy in the assumption made by the Court of Special Appeals—that, had the motion been made before the jury retired, the trial court would have “taken the curative steps necessary to prevent injustice.” The record shows, quite clearly, that no different action would have been taken than was, in fact, taken.

The impropriety of the prosecutor’s remarks was raised not only in the motion for mistrial but later in the motion for new trial. On neither occasion did the State argue, nor did the trial judge mention, the question of timeliness. On both occasions, the judge denied the motion solely because of his conclusion that petitioner was not entitled, on the merits, to the relief he requested. The judge never suggested that, had the motion been made a minute or two earlier, he would have been inclined to give some further instruction or taken some other intermediate action.

He was convinced that he had already done all that needed to be done to counteract the prosecutor’s remarks. The question, then, is more appropriately put: did the Court of Special Appeals err in holding, as a matter of law or inflexible appellate policy, that a defendant fails to preserve for appellate review a complaint over the denial of a motion for mistrial based on improper closing argument by a prosecutor if the motion is made after the jury has retired to consider its verdict but before the jury has announced the reaching of a verdict? In this case, that question is laden with the intermediate appellate court’s further conclusion, with which we heartily agree, that the prosecutor’s argument was, indeed, wholly improper and presumptively prejudicial—that petitioner “had a valid objection to the prosecutor’s request that the jurors consider their own interest.” As noted, in reaching its conclusion that objections to improper argument are unpreserved for appellate review unless ²¹⁷ made immediately after the improper comment is made or immediately after the argument is completed, the Court of Special Appeals relied on its earlier holding in Grier v. State, 116 Md.App. 534, 545 , 698 A.2d 1133, 1138 (1997). Some comment about that case is in order.

It involved three issues: whether a general objection sufficed to preserve a complaint about the admission of the defendant’s post-arrest silence; whether the admission of that evidence was, in any event, harmless; and whether the defendant’s complaint about the prosecutor’s comment on the post-arrest silence in closing argument was preserved for appellate review. The court found against Grier on all three issues, concluding that the general objection did not preserve the objection, that the evidence was harmless, and that the objection to closing argument was also not preserved. The first thing to note is that, on further review in that case, we concluded that the general objection was sufficient to preserve Grier’s objection to the evidence and that the admission of that evidence was both erroneous and prejudicial. We reversed the judgment of the Court of Special Appeals on those grounds.

Grier v. State, 351 Md. 241 , 718 A.2d 211 (1998). 2 We did not address, in our Grier, the third issue of whether the defendant’s objection to the State’s closing argument was preserved. That issue was not raised in the petition for certiorari and, in light of our holding on the other issues, it would have been moot in any event. Had the Court of Special Appeals reached the correct conclusion in Grier on the first two issues, we presume that it too would have found the third issue moot and, for that reason, declined to address it. Apart from that, the facts in Grier were different from those here.

The prosecutor commented on Grier’s post-arrest silence in the opening of his closing argument, without objection. He commented on it again in his rebuttal argument, also without objection. The jury was excused for lunch and told to ²¹⁸ report back at 2:00 to begin deliberations. During the luncheon recess, defense counsel called the judge’s chambers and left a message on the judge’s voice mail complaining about the comment made during the rebuttal argument.

It was not until after the jury had been deliberating for over an hour, however, that counsel lodged a proper motion for a mistrial. Analogizing the situation to a complaint over jury instructions, which Maryland Eule 4-325(e) requires be made “promptly after the court instructs the jury,” the Court of Special Appeals determined: “This case is a classic example of the logistical problems involved in (1) reassembling everyone whose presence is required before the problem can be addressed, (2) hearing from counsel at a point in time when the comments at issue, and tone of voice with which they were delivered, are fresh in everyone’s mind, (3) resolving the issue of what—if anything—should be done under the circumstances, and (4) returning the jurors to the jury box soon enough for the trial court to ‘strike while the iron is hot.’ ” Grier v. State, 116 Md.App. at 545 , 698 A.2d at 1138 . On that basis, the court stated that it would continue to hold that objections to improper argument are timely if interposed either immediately after the allegedly improper comment is