Johnson v. State

CHARLES E. ORTH, Jr., Judge, Specially Assigned. Let me just tell you ladies and gentlemen a couple of things that bothered me about what my learned friend has said. She said that when you go back there and you come up with a verdict you can’t change your minds, make sure, make sure. She wants to elevate reasonable doubt more than it is in your minds.

Well, let me tell you ladies and gentlemen, if your verdict is not guilty you can’t change it. If it is guilty it is reviewed by the appellate— So quoth the prosecutor to the jury at the criminal trial of Michael Jay Johnson in the Circuit Court for Prince George’s County. The judge had instructed the jury at the close of all the evidence, the prosecutor had made the first phase of his closing argument, and his “learned friend”— defense counsel — had made her closing argument. The prosecutor had the last shot at the jury before it retired to consider its verdict.

When the prosecutor declaimed to the jury: “[I]f your verdict is not guilty you can’t change it” but “[i]f it is guilty it is reviewed by the appellate — ” defense counsel promptly interposed an objection. The judge immediately disposed of the objection with one word, “Overruled.” Thus encouraged, the prosecutor continued: And the rights of the appeal go all the way up to the Supreme Court. So what she is telling you, saying that to you, she is not being quite honest to you. She wants to elevate that reasonable doubt in your mind which is what her job is to make it harder for you all to find him guilty.

The prosecutor concluded his argument after a few brief remarks concerning other matters. The jury retired to deliberate its verdict. It found Johnson guilty of the malicious cutting and assault and battery of one Edward Never- ⁵¹⁴ son. 1 Johnson appealed from the judgments entered on the convictions and the Court of Special Appeals affirmed them in an unreported opinion. We granted Johnson’s petition for a writ of certiorari.

The petition presented one question: Did the trial court commit reversible error when it overruled Petitioner’s objection to the prosecutor’s argument that a not guilty verdict is irreversible, while a guilty verdict is subject to appellate review? We accepted that question in the issuance of the writ, but the State translates it into, Did the trial court properly exercise its discretion in controlling the scope of the prosecutor’s rebuttal closing argument? The answer to the question presented in the writ is, “Yes.” The answer to the question posed by the State is, “No.” I. We first observe that the State makes no suggestion that the objection made by defense counsel does not reach the continuing remarks on the subject made by the prosecutor immediately after the overruling of the objection. The objection interrupted the prosecutor in midsentence, and it was perfectly clear what would follow if the objection were not sustained.

We think that the objection went not only to what was said but also to what was obviously to come. By ⁵¹⁵ overruling the objection, the judge demonstrated that he was permitting the prosecutor to continue along the same line. It was apparent that his ruling on further objection would be unfavorable to the defense. Persistent objections would only spotlight for the jury the remarks of the prosecutor.

In the circumstances, the absence of a further objection did not constitute a waiver. See Md.Rule 4-323(c). And, of course, a motion to strike, in the light of the adverse ruling, would be futile. The issue is properly before us.

See Shoemaker v. State, 228 Md. 462, 467-468 , 180 A.2d 682 (1962).

II

The challenged harangue of the prosecutor was prompted by remarks of defense counsel at the conclusion of her closing argument to the jury. She observed that it was indeed a burden to judge another human being. But under our system of criminal justice, she pointed out, we are judged by twelve of our peers and rely on their considered judgment. This, she averred, is “unlike anything else that you might do in your daily lives....” She explained: [I]f you go out here and make such an important transaction today like you sign your name on a contract to buy a home, if you decide tomorrow that I don’t really like that house, you can go back as long as you have got a contingency in there, get your deposit back and say, I don’t want that.

Just like if you purchased a car and you get home and your wife or your husband says, “Take that back, I don’t want that,” you can exchange it, take it back. Your verdict doesn’t work that way because the collective decision that the 12 of you make is final. It is not exchangeable, it is not returnable. You good ladies and gentlemen of the jury make one verdict and decide whether he goes home.

I think I made a mistake, it is too late. It is not exchangeable and it is not returnable tomorrow. So I ask you to think very, very carefully. ⁵¹⁶ And I know we are asking a lot of you, but this is the system that we have. It is a good system and it works.

The heart of defense counsel’s argument was her assertion that “the collective decision that the 12 of you make is final.” It is patent that she was referring to the verdict of the jurors and her statement was correct as far as the jurors were concerned. Once their verdict was established as unanimous, 2 whether by harkening or polling, see Md. Rule 4-327(e), the case was no longer within the province of the jury, and its verdict was final. Cf. Hoffert v. State, 319 Md. 377 , 572 A.2d 536 (1990).

As defense counsel warned, it is then too late for a juror to change his or her verdict on a belated belief that he or she was mistaken in the first instance. Therefore, defense counsel implored the jurors, “think very, very carefully” before reaching a decision. She was doing no more than beseeching the jurors to be sure that they honored the responsibilities they assumed when they were sworn. Upon being selected to try the case, the court clerk requested that the jurors “stand and raise their right hands.” The clerk asked: [Y]ou do solemnly promise or declare that you shall well and truly try the issue joined between the State of Maryland and Michael J. Johnson, defendant, and a true verdict give according to the evidence?

Each juror responded, “I do.” The instructions given by the judge for the jury included guidelines for the performance of the obligations required by the oath. He said, “The verdict that you arrive at in this case must be the considered judgment of each and every one of you.” (emphasis added). He fully discussed “reasonable doubt.” He told the jurors that they must decide the case “only after an impartial consideration of the evidence____” He explained that they ⁵¹⁷ must consider this case impartially and fairly. You are to perform this duty without bias or prejudice as to any party.

You should not be swayed by sympathy, prejudice or public opinion. The judge pointed out that one of the “major responsibilities” of a juror was to judge the credibility of the witnesses, and he explained the function of a juror in weighing the evidence. The instructions fleshed out the promises the jurors made when sworn, and the remarks of defense counsel were consistent with the oath and in no way in conflict with the instructions. The import of defense counsel’s argument was that each juror must “well and truly try the issue” and “a true verdict give according to the evidence.” But, she cautioned, the verdict should be given only after the most careful consideration inasmuch as it may not be stricken because a juror, later on, has a change of heart.

It was in that light that defense counsel requested the jurors, “to think very, very carefully” before deciding the issue. We think that the remarks of defense counsel were proper. On the other hand, we think that the remarks of the prosecutor in his final argument were improper. We note that defense counsel’s argument was not challenged when made.

Instead, the prosecutor utilized his privilege to be the last to have the ear of the jury to rebut her argument. We further note that we do not agree with the prosecutor’s twice asserted claim that defense counsel indicated that “[s]he wants to elevate reasonable doubt more than it is in [the jurors’] minds.” We do not gather from her remarks that she was suggesting that, contrary to the judge’s instructions, the jury apply a higher degree of proof than the reasonable doubt standard in deciding the case. The prosecutor saw specters in defense counsel’s argument that were not there. He attempted to defuse her argument by materializing the appeal process.

In doing so he erred. We ascribe no nefarious intention on the part of the prosecutor, but it is the impact of his comments on the jury that is significant, not his intent. We believe a juror may ⁵¹⁸ reasonably conclude from his argument that a not guilty verdict is truly final. If you do not convict Johnson he walks out of the courtroom forever a free man, as far as the offenses here are concerned, because he cannot be twice placed in jeopardy for the offenses on which you found him not guilty.

This of course is correct. A verdict of guilty, however, the prosecutor suggested, is not final. He indicated that, although the State cannot appeal from a verdict of not guilty, Johnson has the right of appeal from a guilty verdict, all the way to the Supreme Court of the United States. The message conveyed by the remarks was plain; the possibility exists that a verdict of guilty will be set aside.

The implication was that the jurors need not be unduly concerned about convicting Johnson. If the conviction turned out to be improper, it may be wiped out on appeal. Even if the remarks made by the prosecutor concerning Johnson’s rights of appeal are taken as accurate, they, unlike defense counsel’s argument, tended to subvert the promises and declarations of the jurors when sworn, and to improperly encourage the jurors to disregard the judge’s instructions. One of the most egregious errors counsel can