Howard v. State

Thompson, J., delivered the opinion of the Court. A legal intern, working with the prosecutor, made ⁶⁷⁴ reference in closing argument to important evidence which had not been presented to the jury. We hold that the trial judge abused his discretion in failing to grant appellant’s timely motion for a mistrial. Stephen Gary Howard, the appellant, was convicted of rape and kidnapping by a jury in the Circuit Court for Prince George’s County.

A twenty-four year old teacher in the Prince George’s County schools testified that about 11:30 p.m. on July 19,1972, while she was getting out of herbar in a parking lot at her apartment project, she was accosted from the rear by a man who placed his hands over her face, pushed her down on the seat, saying, “Don’t scream or I will blow your head off.” A second person entered the driver’s side and drove the victim’s car some distance to a lonely spot. At that time, the victim was blindfolded, commanded to undress and to lie on the hood of the car. For the next two hours, the two men took turns having or attempting sexual intercourse with her. While still blindfolded she was driven back to the parking area and helped out of the car.

When the blindfold was removed, after a three (3) hour emplacement, she got a glimpse of one of the men. She stated she was able to observe, for a period of from 2 to 5 seconds, the man whom she identified as the appellant. Police were immediately called and removed 27 fingerprints from the top of the windshield and from the hood of the car, a 1970 Maverick. Eight of the fingerprints were identified to be those of the appellant, eight to be those of the victim and eleven were not identified.

The expert testified it was not possible to pinpoint how long the prints had been in place; that they could have been there anywhere from two hours to three weeks. The victim admitted that her car had been in the Prince George’s Shopping Center, a place frequented by the appellant, but she did not know exactly when she had last been there. Appellant testified he was sixteen years of age at the time of the alleged offense; that he could not specifically recall where he had been on the night in question; but he believed that he had been at the Shopping Center, as it was his custom to wait outside of the restaurant to “party” with the ⁶⁷⁵ waitresses on the parking lot after they got off duty. He continued, that he did not participate in the rape in any manner and had no idea how his fingerprints got on the car, except that while waiting for the waitresses to finish work he occasionally horseplayed on the parking lot and may have placed his fingerprints thereon during one such occasion.

Though no photographic identification evidence was introduced before the jury, during his final argument, the legal intern stated: “We have something extra in this case, we have fingerprints. You have heard that testimony. I am not going to go through it. One thing that hasn’t been mentioned, doesn’t it seem a little bit odd to you that of all of the people, all of the people’s fingerprints that were found on that car, it just happened to be the fingerprints of the man she picked out, that she picked out of some police pictures?

Doesn’t that seem awfully funny? She doesn’t know when she picked out that picture whose fingerprints they were. It just happened to be the picture she picked out, happened to match with the fingerprints the police found. Now, that seems to me too big a coincidence to be a coincidence.

If you find that is not a coincidence, if you can really believe that, that that just happened and that Gary Howard was playing around and he put his hands all over the hood and sides of the car, if you can believe all that, then I guess maybe you will have to come back with a verdict of not