Holbrook v. State

Orth, J., delivered the opinion of the Court. The appellant was found guilty by a jury in the Circuit Court for Cecil County of assault upon and battery of Ralph Newton and sentenced to 10 years. 1 At the close of all the evidence, a motion for judgment of acquittal was made and denied and the court instructed the jury. Thereafter the State opened the argument to the jury, defense counsel argued in behalf of the appellant and the State made closing argument. The appellant claims that the closing argument of the State denied him a fair and impartial trial. 2 Of course, the prosecutor may not make statements to the jury which exceed the limits of permissible comment.

What exceeds the limits of permissible comment depends a good deal on the ²⁶⁹ facts of each case, even where remarks may fall into the same general classification. Shoemaker v. State, 228 Md. 462, 468 . Generally the prosecutor has an obligation to refrain from making any remark within the hearing of the jury which is likely or apt to instigate prejudice against the accused. Thus an appeal to racial or religious prejudice is improper.

Contee v. State, 223 Md. 575, 584 . The better reasoning and weight of authority are against the propriety of remarks as to the right of appeal and the possibility of executive clemency and parole of the defendant. Shoemaker v. State, supra, at 468. It is improper for the prosecutor to assert his personal belief or personal conviction as to the guilt of the accused, if that belief or conviction is predicated upon anything other than the evidence in the case, but he has the undisputed right to urge that the evidence convinces his mind of the accused’s guilt.

Cicero v. State, 200 Md. 614, 620-621 ; Apple v. State, 190 Md. 661, 666 ; Riggins v. State, 125 Md. 165, 174 . Appeals to passion may so poison the minds of jurors that an accused may be deprived of a fair trial. Wood v. State, 192 Md. 643, 652 . It is the duty of the prosecutor to confine himself in argument to facts in evidence, and he should not state and comment upon facts not in evidence, or to state what lie could have proven.

Esterline v. State, 105 Md. 629, 637 . “I t is unquestionably wrong for the State’s Attorney in his argument to the jury to refer to any matter not testified to by the witnesses or disclosed by the evidence in the case * * Toomer v. State, 112 Md. 285, 292-293 . As Wharton puts it in his 5 Criminal Law and Procedure (Anderson) § 2081, p. 241, “Moreover, since it is the duty of the prosecuting attorney to act impartially to achieve justice, he should avoid urging upon the jury any inferences which are not logical deductions from the evidence in the case.” In short, the prosecutor should make no remark “calculated to unfairly prejudice the jury against the defendant.” Newton v. State, 147 Md. 71, 92 ; Meno v. State, 117 Md. 435, 441 . The fact that in Maryland the jury is the judge of the law as well as of the facts does not mitigate the consequence of an improper statement by the prosecutor. Shoemaker v. State, supra, 472.

But that a remark made by the prosecutor in argument to the jury was improper does not necessarily compel that ²⁷⁰ the conviction be set aside. For example as the Court of Appeals said in Toomer v. State, supra, 293, quoting Dunlop v. The United States, 165 U. S. 486 : “If every remark made by counsel outside of the testimony were ground for a reversal, comparatively few verdicts would stand, since in the ardor of advocacy, and in the excitement of trial, even the most experienced counsel are occasionally carried away by this temptation.” The 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 a judgment of conviction will not be justified. Wood v. State, supra, 652. Kellum v. State, 223 Md. 80, 88 .

See Shoemaker v. State, supra, 473-474. In applying this rule it appears that a significant factor in determining whether the jury were likely to have been misled or influenced to the prejudice of the accused by an improper remark is whether the trial court took appropriate action to overcome a likelihood of prejudice, e.g. informing the jury that the remark was improper, striking it and admonishing them to disregard it. When such action, found to be sufficient by the reviewing court, was taken, the judgments were affirmed. Cohen v. State, 173 Md. 216, 230-232 ; Callan v. State, 156 Md. 459, 469 ; Newton v. State, supra, 92; Esterline v. State, supra, 637; Cox v. State, 3 Md. App. 136, 141 .

And in Shoemaker v. State, sufra, and Meno v. State, supra, where such action was not taken by the trial court, the judgments were reversed. The question arises as to the preservation on appeal of the question of improper statements of the prosecutor in argument. This Court will not ordinarily decide any point or question which does not plainly appear to have been tried and decided by the lower court. Md. Rule 1085.

In Cicero v. State, supra, the Court noted that no objection was made to the challenged argument and thus there was a waiver of the error and an estoppel in the Court of Appeals. But we do not think that error is waived by failure to object at the moment the improper statement is ²⁷¹ made in the argument. 3 See Md. Rules 522b and 7251. In Day v. State, 2 Md. App. 334 we noted that there was no exception or objection taken at the time of the State’s Attorney’s final argument. We said, at 340, “If the accused desired to complain of an alleged impropriety in the State’s Attorney’s closing argument he should have either moved to strike it out or moved to withdraw a juror and declare a mistrial.” We do not take this to mean that the point is not preserved unless the State’s argument is interrupted by objection or motion.

Although it may be better for defense counsel to object when the statement is made during argument, we think that objection is timely when brought to the attention of the trial court when it has a reasonable opportunity to correct the situation at the conclusion of the argument. 4 We note also that there is an obligation on the trial court in certain circumstances even in the absence of objection. In Viereck v. United States, 318 U. S. 236 the accused did not object at the time “highly prejudicial” remarks were made by the prosecutor, but objected during the court’s charge to the jury, which objection was overruled as too late. The Supreme Court said that the trial judge should have stopped counsel’s discourse without waiting for an objection. 5 In Meno v. State, supra, the Court said, regarding the “highly improper” action of the State’s Attorney in injecting an improper statement into the case (not in argument), that “he should have been checked immediately by the Court, and the jury instructed to totally disregard his remark.” And the trial court’s responsi ²⁷² bility may not end with overruling an objection made. “[I]n addition to sustaining an objection to an improper remark or misconduct, (the trial court) is also entrusted with further responsibility to caution or reprimand the State’s Attorney as the exigencies of the situation may require and to forthwith instruct the jury to disregard the unwarranted remarks and conduct of the prosecuting attorney.” Contee v. State, supra, 584. And even absent an objection or action by the trial court, “[i]t is, of course, true that in a criminal case where grave error has been committed, and the accused is thereby denied due process, an appellate court may and should on its own motion, reverse the conviction.” Apple v. State, supra, 667-668.

With this background we turn to the instant case. At the conclusion of the State’s closing argument defense counsel told the court that he would like “to take some exceptions to the State’s Attorney’s argument.” The court suggested it could be done during the lunch hour in chambers and the court recessed. In chambers, in the presence of the appellant, defense counsel moved for a mistrial “because of the closing argument made by the Assistant State’s Attorney.” He said: “We particularly feel that the entire tenor of the closing argument was improper, and especially refer to statements made that the defendant had been on the witness stand many times when there was no evidence the defendant had ever testified in court; statements that Mr. Newton had told the State’s Attorney the same version on numerous occasions when there was no testimony on that point; particularly to his argument to the jury that the defendant was mentally defective, and that the fact of his being mentally defective could be proven by the fact he had been convicted of assault and battery on several prior occasions. We particularly feel that the Court had instructed the jury and had limited the use of the prior coxrvictions solely to a matter of credibility and that any attempt to show or any argument to show that he was mentally defective because of prior convictions is wholly prejudicial.

Further, the argument was made that since the defendant had been convicted of assault and battery on ²⁷³ prior occasions, you say to yourself, I wonder if he did it again, and we feel that this once again is using the prior convictions improperly; argument on prior convictions should be used as evidence to convict if necessary in a particular case.” The prosecutor responded by characterizing his comment, “Anyone that has got a record like that has got mental problems, something wrong with him,” as “just a statement in argument. It has nothing to do, anything that the jury cannot decipher on their own.” He thought the statement that the appellant had been on the witness stand many times before not improper because he had a record. “As far as the statement that the defendant has been convicted before, I wonder if he did it again, I still think it is proper for a closing argument.” The court denied the motion for a mistrial. Noting that no objection was made during the argument, although exceptions were taken at its close, it said : “The Court has had a chance to observe counsel during argument and to hear the arguments, the tenor of the arguments, the relationships of the parts of the arguments to each other, and the overall argument, and believes without question that the State’s Attorney was sufficiently circumspect and within proper limits of a closing argument and the rules applying thereto. The Court might note that defense counsel was given considerable latitude in reading from Trial Magazine, relating their personal experiences at the Bunny Club, reciting prayers of Benedictine Monks, and quoting poetry in their closing argument.” It is clearly established that past convictions of an accused, with exceptions not here applicable, may be considered by the trier of fact only as to his credibility.

Hayes v. State, 3 Md. App. 4, 10 . The trial court so charged the jury: “]T]he defendant’s criminal record is admitted into evidence for the sole purpose of assisting you in evaluating the defendant’s credibility, that is, his worthiness of belief. You should not attempt to draw any in ²⁷⁴ ferences of guilt from the fact he has been convicted on prior occasions. In other words, his previous convictions have nothing whatsoever to do with his guilt or innocence of the offense with which he is now charged.” Thereafter, during his closing argument the prosecutor referred to the prior record of the appellant on three separate occasions. 6 At the first, near the beginning of the argument, stating he was “sick and tired” of defense attorneys telling him or inferring that he and the police department were “out to get this man because he has got a record,” he said, “He has got a record of four assaults and batteries because he committed them.

Can you imagine that? He assaulted people four times, among other things.” The prosecutor drew the conclusion therefrom that the appellant “has been on the witness stand many times.” Toward the middle of his argument, the prosecutor referred the second time to the prior record: “Then they said, well, now, the State likes to infer that a person who has got a record and takes the witness stand will lie. I won’t say that on behalf of the State at any time. The reason that a man’s record is brought out, if he takes the stand, is his credibility to tell you the truth.

That is the only thing. Now, what he did in the past, what is involved there, is credibility. What you are doing, you balance the credibility of a man that has all these convictions and you say, well, I wonder if he did it again ? I think the evidence shows that he did it again.” The third occasion was near the end of his argument.

He said: “I think he has got mental problems. Anyone that has got a record like that has got mental problems, something wrong with him.” We think the reference to the appellant’s prior convictions as made on each of the occasions was improper. The first and third had no relation to credibility. On the first he emphasized to the jury that the appellant had “assaulted people four times, among other things.” (The only other “thing” shown was a disorderly conduct conviction on which he was fined $14).

He ²⁷⁵ asked the jury if they could “imagine that?” He concluded from the convictions that the appellant had been on “that witness stand many times.” On the third occasion he used the prior convictions to convince the jury that the appellant “has got mental problems.” On the second occasion he related the prior convictions to the appellant’s credibility. But he misstated what “credibility” as used in the rule means. He said that he would not say “at any time” that “a person who has got a record and takes the witness stand will lie.” But the rationale of the rule is that “a man who has been convicted of a serious crime is more likely to tell an untruth than a man who has never been convicted of a serious crime.” Piles v. State, 233 Md. 487 ; Culver v. State, 1 Md. App. 406 . The statement, “the reason that a man’s record is brought out, if he takes the stand, is his credibility to tell you the truth,” is redundant but correct.

Then, however, he defines “credibility” as what the appellant “did in the past, what is involved there.” He then tells the jury to “balance the credibility” of a man who has all these convictions and ask themselves, “Well, I wonder if he did it again?” The clear import was that the jury could consider the prior convictions as showing that the appellant committed the crime for which he was being tried. That this is what the prosecutor intended is borne out by his response to the exception taken—“As far as the statement that the defendant has been convicted before, I wonder if he did it again, 1 still think it is proper for a closing argument.” We do not agree. See Gray v. State, 221 Md. 286 ; Wethington v. State, 3 Md. App. 237 . The references to the prior convictions have added significance in light of what transpired before trial.

The appellant had filed a motion to suppress the appellant’s criminal record or at least all evidence tending to show that he had committed the same or similar crimes to those for which he was to be tried. The appellant excepted to the denial of the motion and the court said: “Responding to the defendant’s exceptions, the Court has made it clear in chambers that the purpose for which a criminal record will be ruled admissible is to refer to the credibility of the defendant witness if he takes the stand and only if he takes the stand, and that the Court will make it amply clear to the jury that evi ²⁷⁶ dence of previous convictions, if any, is not in any way to reflect upon the guilt or innocence of the accused as to the present offense charged.” We feel it was also improper for the prosecutor, in answering the “insinuation” of defense counsel that the victim was confused in his testimony, to tell the jury, “Never once when I talked to him did he vary one bit in what happened to him that night.” This, immediately following a statement, “Well, let me tell you, and believe me, at any time that man came into my office, half way through the trial, any time before the trial, any time before Ann Atwell died, and said, T was wrong,’ that would have been the end of it. Or even if he said, T am confused and I am not sure,’ that would be the end of it, believe me,” gave the clear impression to the jury that the prosecutor had talked to the witness prior to trial and that the victim’s version of the incident was the same on those occasions as his testimony at the trial. By these remarks the prosecutor went outside the evidence and by so doing gave additional weight to the testimony of the victim that was not warranted by the evidence.

It is fundamental, of course, that an accused stands before the jury cloaked with the presumption of innocence and that if the jury is not convinced beyond a reasonable doubt of his guilt they must render a verdict of not guilty. It was said in Allen v. United States, 164 U. S. 492 , 501-502: “While, undoubtedly, the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury room. The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments, and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself.

It cannot be that each juror should go to the jury room