Ingram v. State

HARRELL, J. On 16 July 2009, a grand jury in the Circuit Court for Montgomery County indicted Petitioner, Dexter Ingram, on charges of manslaughter by motor vehicle, reckless driving, failure to remain at the scene of an accident resulting in death or bodily injury, and engaging in a race or speed contest, arising from a 2008 traffic incident. A jury trial ensued over 26-30 April 2010. Prior to closing argument at that trial, the trial judge prohibited, on motion of the prosecutor, Ingram’s defense counsel from including in his anticipated argument an explanation of the significance of the legal thresholds of suspicion, reasonable articulable suspicion, probable cause, and a “tie,” by way of contrasting these thresholds along the continuum of standards, leading to the one in play in Ingram’s case, proof beyond a reasonable doubt. The trial court allowed, however, Ingram’s counsel to explain to the jury, for the same purpose, the thresholds of preponderance of the evidence and clear and convincing evidence, as well as to render a lengthy dissertation on the significance of the burden of beyond a reasonable doubt.

The jury found Ingram guilty of reckless driving and failure to remain at the scene of an accident resulting in bodily injury, but not guilty of manslaughter by motor vehicle, participating in a race or speed contest, and failing to remain at the scene of an accident resulting in death. The trial judge sentenced Ingram to five years in prison, with all but 18 months suspended, five years of probation upon his release, and ordered him to pay a $500 fine. Ingram filed timely an appeal to the Court of Special Appeals, arguing, among other points, that his convictions should be reversed and a new trial awarded, because the trial court “unduly restricted” his counsel during closing argument by limiting which comparative standards of proof he could argue to the jury. The Court of Special Appeals affirmed ⁷²¹ Ingram’s convictions in an unreported opinion.

Ingram petitioned this Court for a writ of certiorari, which we granted on 8 February 2012. Ingram v. State, 424 Md. 628 , 37 A.3d 317 (2012). For reasons we shall explain, we affirm the intermediate appellate court’s judgment because the trial court’s refusal to allow a discussion of extraneous legal standards was not an abuse of its broad discretion in controlling the scope of closing argument so as to avoid potential confusion of the jury. Moreover, even were we to assume that an abuse of discretion occurred in this regard, it would be harmless error, due to the otherwise wide latitude given to Ingram’s counsel during the closing argument.

I. The Evidence at Trial On the evening of 9 December 2008, a black Nissan 350Z, driven by Ingram, and a silver Honda Civic, driven by Jeffery Nunez, were traveling closely to each other in a northbound direction on the multiple lane Rockville Pike in Bethesda, Montgomery County, Maryland. At approximately 8:10 p.m., Ingram’s vehicle veered suddenly into the leftmost lane, about a car length in front of Nunez’s car, cutting off Nunez. Nunez’s car swerved into the median, launched into the air, and landed in a southbound lane of Rockville Pike, on top of a white Toyota Camry, driven by Xuan Lai. Lai died from the multiple injuries she sustained in the crash.

Based on the crash data compiled from the accident scene, the lead police investigator testified at trial that Nunez was exceeding the posted speed limit of 40 miles per hour by 26 miles per hour at the time his car struck the median. Ingram presented a defense expert who calculated that Nunez was traveling only seven miles over the speed limit at the time. Several eye-witnesses testified that, prior to the crash, Ingram’s and Nunez’s vehicles were traveling at a high rate of speed. One witness stated that she “had no doubt they were racing.” Ingram’s trial version of events was that, after he “merged” ⁷²² into the lane ahead of Nunez, he heard a “loud boom sound.” 1 He looked into his rearview mirror and “saw two lights turn to the left-hand side.” Ingram did not stop to investigate.

Instead, he proceeded to a nearby parking lot, intending to visit an adjacent electronics store. Also parked in the same lot, a State’s witness overheard Ingram talking excitedly on his cell phone about a traffic incident. He heard Ingram say, “Oh no, I can’t go back. No, I can’t go back there.” After leaving the parking lot, Ingram turned his vehicle southbound, in the direction of where the crash occurred, but the road was blocked off by the police.

Sometime later, Ingram’s employer reported him to the police after he overheard Ingram discussing the incident with a co-worker on the job. At the end of all of the evidence and before closing argument commenced, the State requested that the trial judge instruct Ingram’s counsel that he may discuss in his expected closing argument only the preponderance of the evidence and beyond a reasonable doubt standards, rather than allowing him to use a graphic display (his “board”) that outlined a gamut of seven progressively different burdens of proof. 2 Ingram’s counsel described anticipatorily and for the record his “board” and intended method of presentation: At the bottom, it says suspicion, and I would talk about that that’s, you know, can’t even stop somebody for suspicion. Reasonable articulable suspicion is next up. I would talk about, very briefly, that that allows the police to stop somebody for a very brief time to confirm or dispel suspicion of criminal activity.

Then probable cause is next up, and I’d say that allows, generally, that allows the police to go in somebody’s house ⁷²³ after a judge signs a warrant, confirming that’s there probable cause of evidence of a commission of a crime in somebody’s home, or it allows the police to arrest somebody based on probable cause of a felony having been committed without a warrant. Next is a tie, 50 percent. Next is “Preponderance of the Evidence,” and I would just simply say, in a car accident case, in order to prove negligence and to get money, the plaintiff just needs to push the ball slightly past midfield. It’s a slightly tipping of the scales at 51 percent.

Next is “Clear and Convincing.” I would say that in certain fraud civil cases, it’s the burden of proof where the plaintiff is required to show their cause of action by clear and convincing evidence in order to convince a jury to give them money for certain civil fraud actions. And then “beyond reasonable doubt” is above “clear and convincing” and that is what is required in a criminal case. The parties argued Drake v. State, 186 Md.App. 570 , 975 A.2d 204 (2009), rev’d on other grounds, 414 Md. 726 , 997 A.2d 154 (2010), as relevant to the issue. In Drake, the Court of Special Appeals upheld a trial court’s decision to allow in a defendant’s closing argument in a criminal trial only an explanation of the standards of preponderance of the evidence and beyond a reasonable doubt. 186 Md.App. at 598 , 975 A.2d at 220 .

The trial judge refused to allow Ingram’s counsel to present to the jury his arguments about suspicion, reasonable articulable suspicion, probable cause, and a “tie.” The judge did permit, however, Ingram’s counsel to discuss preponderance of the evidence, clear and convincing evidence, and beyond a reasonable doubt in his closing argument, explaining that they are ultimate trial “standards of proof,” but the other four standards were “not appropriate” because a jury in a criminal case would not be called upon to consider them. Prior to the closing arguments, the trial judge gave, among others, the pattern jury instructions on presumption of innocence and reasonable doubt. 3 ⁷²⁴ Ingram’s counsel presented a lengthy, cohesive explication of reasonable doubt. He began by describing the history of reasonable doubt and characterized it as, “the highest level of proof in our American jury system,” “a sacred right,” and requiring the willingness on the part of the fact-finder to “act upon such a belief without reservation.” He then argued individually the application of the standard of reasonable doubt to each of the charges against Ingram in order to stress the level of certainty required to find his client guilty. Counsel emphasized also the importance of the binding nature of the trial court’s instructions and that the burden of proof is on the State.

After discussing the various charges at length, Ingram’s counsel returned to the standard of reasonable doubt and compared it in lay terms to a spectrum of lesser thresholds of proof: If you think maybe, no way. If you think probably, no way. If you think likely, no way. If you think very likely, no way.

If you think very highly likely, no way. Only when it’s I know beyond a reasonable doubt and that’s only when you can take away the liberty interest, all right. Defense counsel transitioned next to a discussion of the standards of preponderance of the evidence and clear and convincing evidence (in comparison to reasonable doubt), stating: ⁷²⁵ Preponderance of the evidence. It’s a standard of proof.

In a civil case when the plaintiff is trying to prove negligence, okay, the plaintiff or the person bringing the lawsuit has the burden of proof by preponderance of the evidence. That’s just tipping the scales and then a jury can give the claimant money. That’s preponderance of the evidence. Just tipping the scale slightly.

Some people said pushing the ball slightly past mid field, okay? Just past that mid-point mark. That’s preponderance of the evidence. That’s in a civil case.

Other civil cases are clear and convincing evidence. Clear and convincing evidence. That’s when a civil claimant proves fraud and a civil claimant, somebody files a lawsuit and get money for fraud. It’s clear and convincing evidence.

It’s that. But in an American criminal trial it’s beyond a reasonable doubt. It’s way beyond clear and convincing. Think about it.

Are you clear? I’m clear. Are you convinced? I’m convinced.

Well clear and convincing is not enough in an American criminal trial. It’s beyond a reasonable doubt. Defense counsel concluded with a warning of the dangers of compromise and reemphasized that the burden of proof is on the State. As noted earlier in this opinion, Ingram was convicted of reckless driving and failure to remain at the scene of an accident resulting in bodily injury and acquitted of manslaughter by motor vehicle, participating in a race or speed contest, and failing to remain at the scene of an accident resulting in death.

Ingram filed timely an appeal to the Court of Special Appeals, presenting three questions, including the following: “Did the circuit court properly exercise its discretion when it restricted defense counsel’s closing argument?” 4 The Court of Special Appeals affirmed, in an unreported opinion, Ingram’s convictions. In upholding the trial court’s judgment, ⁷²⁶ the intermediate appellate court explained that the trial court acted reasonably and within its broad discretion to reduce juror confusion by prohibiting the discussion of irrelevant evidentiary standards. The Court of Special Appeals relied, in large part, upon its opinion in Drake, where it upheld a trial court’s decision to deny a defense counsel’s request to discuss a number of lesser standards and burdens not implicated directly in the particular criminal case. Ingram petitioned this Court for a writ of certiorari, which we granted on 8 February 2012, 424 Md. 628 , 37 A.3d 317 (2012), in order to consider the following question: Did the lower court err by relying on Drake v. State, 186 Md.App. 570 , 975 A.2d 204 (2009), and limiting trial counsel’s attempt in closing argument to compare the State’s burden of proof beyond a reasonable doubt to other legally recognized standards of proof?

We conclude that the trial judge’s refusal to allow a discussion of the extraneous, extrinsic, and largely irrelevant legal standards in this criminal trial was not an abuse of his broad discretion to control the scope of closing argument calculated to reduce the potential for juror confusion. Moreover, even were we to assume for the sake of argument that an abuse of discretion occurred, it would be harmless error on this record, due to the wide latitude given actually to Ingram’s counsel to argue more comparable standards to the one to be applied actually by the jury. Accordingly, we affirm the judgment of the Court of Special Appeals.

II

Standard of Review A trial court is in the best position to evaluate the propriety of a closing argument as it relates to the evidence adduced in a case. Mitchell v. State, 408 Md. 368, 380-81 , 969 A.2d 989, 997 (2009). As such, we do not disturb the trial judge’s judgment in that regard unless there is a clear abuse of discretion that likely injured a party. Grandison v. State, 341 Md. 175, 225 , 670 A.2d 398, 422 (1995).

A trial court abuses its discretion when its “ruling either does not logically follow from the findings upon which it supposedly rests or has ⁷²⁷ no reasonable relationship to its announced objective.” McLennan v. State, 418 Md. 335, 354 , 14 A.3d 639, 650 (2011).

III

Discussion The State and Ingram agree that the evidentiary and legal standards or thresholds of suspicion, reasonable articulable suspicion, probable cause, and a tie “were not generated by the evidence or in any way relevant to the issues before the jury.” This lack of relevance establishes, as the State sees it, that Ingram was not entitled to engage before the jury in a discussion of these standards. The State argues also that the ruling should be upheld on the grounds that it is well within the broad range of discretion afforded the trial judge in regulating the course of a trial. Ingram’s arguments for reversing the trial court’s judgment fit largely into two categories: (1) the wide latitude afforded counsel to engage in “oratorical flourishes” and allusions during closing argument should permit the proposed discussion of otherwise extraneous legal standards; and (2) the discussion should be permitted because it would give the jury a helpful hierarchal context to understand better the highest standard of beyond a reasonable doubt. 5 A. Abuse of Discretion During closing argument, counsel must confine his or her oral advocacy to the issues in the case, but is afforded generally wide latitude to engage in rhetorical flourishes and to invite the jury to draw inferences. Degren v. State, 352 Md. 400, 430 , 722 A.2d 887, 901-02 (1999).

At the same time, a trial judge has broad discretion to control the scope and duration of counsel’s closing argument in order to ensure fairness. Herring v. New York, 422 U.S. 853, 862 , 95 S.Ct. ⁷²⁸ 2550, 2555 , 45 L.Ed.2d 593, 600 (1975); Wilhelm v. State, 272 Md. 404, 413 , 326 A.2d 707, 714-15 (1974). The determination of whether a portion of counsel’s argument is improper or prejudicial rests largely within the trial judge’s discretion because he or she is in the best position to determine the propriety of argument in relation to the evidence adduced in the case. Mitchell, 408 Md. at 380-81 , 969 A.2d at 997 .

Although this Court has not ruled previously on the propriety of a trial court’s specific exclusion from closing argument in a criminal case of discussion of extraneous legal standards, we demonstrated deference to the trial court’s exercise of discretion to control the scope of closing argument. Wilhelm, 272 Md. at 413 , 326 A.2d at 714-15 . 6 Due to the binding nature of the trial court’s jury instructions on reasonable doubt, the substance of the instructions are not subject to debate by counsel before the jury during closing argument. Montgomery v. State, 292 Md. 84, 91 , 437 A.2d 654, 658 (1981). 7 The ⁷²⁹ trial court is required to adhere “closely” to Maryland Criminal Pattern Jury Instruction 2:02 when instructing the jury on the reasonable doubt standard. Ruffin v. State, 394 Md. 355, 371 , 906 A.2d 360, 370 (2006).

The purpose of requiring a uniform reasonable doubt jury instruction is to “eliminate confusion and foster fairness for defendants, the state, and jurors alike.” Ruffin, 394 Md. at 369 , 906 A.2d at 370 . Although there is no analogous rule establishing explicit boundaries for counsel expounding upon the reasonable doubt pattern jury instruction, allowing counsel to expand too far afield upon the trial court’s binding jury instructions during closing argument carries with it a similar danger that the jury may misapply the law. White v. State, 66 Md.App. 100, 118 , 502 A.2d 1084, 1094 (1986). Ingram’s first argument, that the trial court impinged upon the wide latitude afforded to counsel during closing argument, is unconvincing.

As this Court pointed out in Degren , counsel is not entitled to discuss issues outside the scope of the case at hand. 352 Md. at 430 , 722 A.2d