Marini v. State

Davidson, J., dissenting: I do not agree with the majority that the State’s Attorney’s question as to whether it would surprise the appellant to know that Miss McCarthy had reported the license tags on the car found in his possession to be stolen, ³² and the State’s Attorney’s statements, made in the presence of the jury, to the effect that the report of the theft of the license tags was “a matter of record” which “could be proved,” were not prejudicial because they did not support an inference that the appellant stole the tags. I believe that not only the State’s Attorney’s initial question and assertions, but also his subsequent line of questioning with respect to the ownership and transfer of the tags, which he himself described as designed to discredit the appellant’s testimony “that he had no reason to believe or suspect this car might be stolen,” were highly prejudicial. In my view, the State’s Attorney’s questions, coupled with his statements, not only raised the inference that the appellant had stolen the license tags and was, therefore, lying under oath when he denied the theft, but also supported the further inference that, in fact, he knew that the vehicle found in his possession was stolen property for which he could procure license tags only by illegal means. As a result of the injection of these inferences, based upon facts which were not in evidence, the jury was misled.

Under these circumstances, the State’s Attorney’s failure to offer evidence establishing that the appellant had stolen the license tags, or to disclaim any intimation from his questions and assertions that the plates had been stolen, coupled with the trial court’s failure to stop the line of questioning and to give cautionary instructions to the jury indicating that they should disregard the State’s Attorney’s questions and statements, as well as any inferences therefrom, constituted reversible error. The prosecutor should make no remarks in the presence of the jury calculated to unfairly prejudice the jury against the accused and to deprive him of a fair trial. 1 It is unquestionably wrong for the prosecutor at any point in the trial, when in the presence of the jury, to refer to any matter not testified to by a witness or disclosed by the evidence in ³³ the case, including during an opening statement, 2 during the trial, 3 and in closing argument. 4 Not every improper remark made by counsel during the progress of the trial is cause for challenge or mistrial. What exceeds the limits of permissible comment depends upon the facts in each case. Unless it appears that the jury was actually misled or likely to have been misled or influenced to the prejudice of the accused by the remarks of the State’s Attorney, reversal of a conviction on this ground would not be justified. 5 Finally, concerning what may be “prejudicial,” the Court of Appeals, in Wilhelm, supra, quoting from Gaither v. United States, 413 F. 2d 1061 (D. C. Cir. 1969), stated: “The applicable test for prejudice is whether we can say, ‘with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.’ The decisive factors are the closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error.” (Citations omitted.) 6 In Esterline, supra, where a defense witness testified in support of self-defense, that immediately after the fight the appellant “had finger prints on his throat,” and the State’s Attorney in closing argument stated that had he known such evidence would be produced, he “could have pro ³⁴ duced a hundred witnesses to prove that there were no finger prints on his throat at that time,” the argument was held to be improper.

There the Court said: “It was undoubtedly improper for the State’s Attorney to have told the jury that he could have proved by a hundred witnesses the falsity of Mary J. Diehl’s testimony, that the prisoner had finger marks on his throat immediately after the shooting. This remark was objected to as improper, and the Court in the presence of the jury told the State’s Attorney that it was not proper for him to make that statement. The State’s officer then apologized for making it and promptly withdrew the objectionable statement.” 7 The conviction was not reversed. In Meno, supra, the State’s Attorney interrupted a prosecution witness during cross-examination and, by way of answer to a question which had been asked of the witness, injected the statement that the deceased victim had told the witness that the accused had aborted her.

Manifestly, the State’s Attorney’s statement consisted of hearsay evidence which would have been inadmissible had the State attempted to introduce it. The Court found that the prosecutor’s attempt to establish the accused’s criminal agency by putting before the jury facts which were not and could not be placed into evidence, constituted improper conduct. There the Court of Appeals said: “The statement made by the State’s Attorney could not have been admitted in evidence if it had been testified to by the witness, for it was clearly hearsay. For the State’s Attorney to inject it into the case in the manner he did was highly improper, and he should have been checked immediately by the Court, and the jury instructed to totally ³⁵ disregard his remark, neither of which things appear to have been done. . .. “ . . .

The remark of the State’s officer was not checked by the Court, nor were the jury cautioned or instructed by the Court to pay no heed to it. In such a condition it seems impossible that the jury should not have been unduly prejudiced against the accused.” 8 The conviction was reversed. In Newton, supra, remarks by the prosecutor were found to be improper. There, in a dialogue with the court as to whether or not the defendant could testify that an audit had been made, he replied, in the presence of the jury: “No. Sir, because I have tried this very traverser and heard him swear that he did not.” The court then said: “That these remarks on the part of the State’s attorney were exceedingly improper and calculated to unfairly prejudice the jury against the defendant, is scarcely a matter for argument, and the court should have warned the jury to disregard them.

But as the remarks were upon motion stricken out, and as the traverser at the time asked for no other action on the part of the court, we do not regard its failure to so warn the jury as reversible error.” 9 In Cook, supra, an accused, in response to a question from the State’s Attorney on cross-examination, stated that he was “pretty sure” he had never been convicted of a crime. Notwithstanding this response, the State’s Attorney repeatedly questioned the accused as to whether he had been convicted on a specified date for a named offense. The ³⁶ appellant’s counsel moved for a mistrial. The court there said: “The State’s Attorney did not then, nor at any subsequent time, proffer to show that the appellant had been convicted of a crime, as was so strongly intimated in his questions, nor did he ask leave of the court to explain to the jury that he desired to disclaim any intimation from his question that the defendant had previously been convicted of a crime.

The questions were, we think, highly improper in the absence of the State being able to establish that the defendant had been convicted in accordance with the statement of the State’s Attorney; and, were it not for the care with which the trial court explained the matter to the jury, would require a reversal of the judgment and a new trial.” 10 In Woodell, supra, the State’s Attorney, after asking the accused about two prior criminal convictions, which he admitted, proceeded to question him concerning convictions of assault by threat, public drunkenness, passing a worthless check, and exceeding the speed limit in a motor vehicle, all of which allegedly occurred in Raleigh, North Carolina. The accused stated that he did not remember the assault and drunkenness convictions, that he had not been convicted of passing a worthless check or of speeding, and that he had never been in Raleigh, North Carolina. The State’s Attorney then alluded to the accused’s F.B.I. record, and asked him whether he thought anyone else had his fingerprints, the clear implication being that the State’s Attorney had access to his F.B.I. record which indicated that he had been convicted of these offenses. The State’s Attorney failed to proffer evidence that the accused had been convicted of these crimes.

The Court of Appeals found the State’s Attorney’s conduct to be a more extreme example of improper conduct than that contained in Cook because the State’s Attorney had sought ³⁷ to buttress his intimation that the accused was lying in denying the convictions by referring to his criminal record on file with the F.B.I. The Court there said: “If the State’s Attorney chooses not to offer appropriate evidence of the prior conviction, he should, under the dictates of Cook, seek leave of court to explain to the jury that he disclaims any intimation from his question that the defendant had previously been convicted of such crime. Failure to do so may result in an appellate reversal of the conviction where the error cannot be deemed harmless, and the point is properly preserved for review on appeal. “Appellants here entered no objection to the questions propounded by the State’s Attorney, and neither moved for a mistrial nor sought an advisory instruction from the court as they might have done under Cook. Under these circumstances, the matter was not before the trial judge for a ruling and consequently is not properly before us for review. Maryland Rule 1085.” (Citations omitted.) 11 In Reidy, supra, where “self-defense was the heart and soul of appellant’s defense,” the prosecutor in closing argument stated: “It is really no self-defense here.

It is a fiction manufactured by the defense counsel.” The court held the prosecutor’s comment to be improper, and said: “The prosecutor’s remark to the jury that appellant’s claim of self-defense was ‘a fiction manufactured by the defense counsel’ could have been interpreted by the jury to mean that defense counsel suborned perjury or that he fabricated the ³⁸ defense, or that the defendant himself committed perjury in testifying that he committed the homicide in self-defense. And by declining defense counsel’s request that the prosecutor apologize, and in finding nothing ‘improper’ in the prosecutor’s remarks, the court’s action may have been considered by the jury as tantamount to judicial approval of the propriety of such argument. And again, when defense counsel’s statement to the jury that the prosecutor’s remarks were improper, and constituted professional misconduct was objected to by the prosecutor, the trial judge did nothing to dispel the fact that the prosecutor’s remarks had indeed been improper. It is against this background that we determine whether appellant’s right to a fair trial was thereby so prejudiced as to constitute a denial of his right to a fair trial. 12 “Where, as in the present case, the prosecutor’s remarks had such a clear potential of prejudicing appellant’s right to a fair trial, and objection was immediately made thereto on the ground that they were ‘absolutely improper and out of order,’ we think the situation thus created was one screaming out for the forceful interdiction of the trial judge and, at the least, a directive to the prosecutor to apologize to defense counsel for the remark — this being all that defense counsel had requested be done.

But even without the apology sought by the appellant, it is not unlikely that the jury would have considered the prosecutor’s remarks, standing alone, as the practical equivalent of an argument that the claim of self-defense was so far-fetched that it was utterly devoid of any merit. Had not the trial judge, therefore, in referring to the prosecutor’s remarks, instructed the jury that ‘it is ³⁹ no improper remark,’ a different case may well have been presented than that now before us. “We, of course, have no way of knowing whether the jury was actually misled or prejudicially influenced by the remarks in question. We do know, however, that self-defense was the heart and soul of appellant’s defense, and that the prosecutor’s remarks had a clear tendency, particularly when not neutralized by the trial judge, to convey the thought to the jury that defense counsel suborned perjury, or that he fabricated the defense, or that the defendant himself committed perjury in testifying that he committed the homicide in self-defense. With the case in this posture, it went to the jury and while it would appear from the record that appellant’s claim of self-defense had little support in the evidence, nevertheless, . . . ‘[c]onviction should be the result of a fair trial and not of the conclusions which a court of review may reach from a consideration of the evidence contained in the record where there has not been a