Marshall v. State

JOHN C. ELDRIDGE, J., Retired, Specially Assigned. The question before us in this criminal case concerns the prosecuting attorney’s comments, during closing arguments, about the defendant’s decision not to testify in his own behalf. More specifically, the issue is whether the prosecuting attorney’s comments constituted error under Article 22 of the Maryland Declaration of Rights and Maryland Code (1974, 2006 RepLVol.), § 9-107 of the Courts and Judicial Proceedings Article, or, instead, were permissible under the “invited response” doctrine. I. The petitioner, Thomas Marshall, was charged with possession of cocaine, possession of cocaine with intent to distribute, and possession of drug paraphernalia, in violation of Maryland Code (2002, 2009 Supp.), §§ 5-601, 5-602(2), and 5-619 of the Criminal Law Article.

A jury in the Circuit Court for Wicomico County found Marshall guilty of possession of cocaine and possession of cocaine with the intent to distribute, but acquitted him of possession of drug paraphernalia. The possession conviction merged into the possession with intent to distribute ²⁵² conviction, and Marshall was sentenced to ten years’ imprisonment for the greater offense. During the trial, the State presented four witnesses. Two police officers testified about their involvement in the search of a house in Fruitland, in Wicomico County, Maryland, where the defendant was found by the officers.

A third witness, an expert in the analysis of controlled dangerous substances, testified that a substance found in the home was cocaine. The State’s final witness qualified as an expert on the identification and valuation of controlled dangerous substances, and he testified with respect to the common practices of narcotics users and dealers. The defense did not present any witnesses. According to the State’s evidence, when police officers executed a no-knock warrant to enter and search the house in Fruitland, the defendant was found in one of the rear bedrooms.

He was searched and three bags of cocaine, weighing a total of 8.4 grams, were recovered from his shirt pocket. The defendant also had cash totaling $177 in a pocket of his pants. The police conducted a search of the room where the defendant was discovered and found an additional 2.6 grams of cocaine hidden in one shoe and a digital scale hidden in another shoe. On cross-examination, defense counsel questioned the police officers as to why the warrant authorizing entry into the Fruitland house did not list the defendant as the owner of the premises.

Attempting to rebut the State’s argument that the defendant had significant ties to the Fruit-land house, defense counsel introduced a police report, related to a different matter, which indicated that the defendant resided at a separate address. Defense counsel also elicited testimony that the police had been unable to find in the house any of the defendant’s personal effects showing that the defendant resided at the Fruitland address. The expert who testified regarding the common practices of drug users and dealers stated that the cocaine found in the three bags from the petitioner’s pocket were commonly known as “eight balls,” approximately an eighth of an ounce, with a ²⁵³ value of roughly $130 to $200. The expert noted that the $177 found on the defendant was significant because that amount fell within the expected price range for one bag of cocaine.

He also testified that the absence of smoking devices at the Fruitland house indicated that the house was being used to sell cocaine, rather than a place to smoke it. The expert explained as follows: “[W]ith [the cocaine] bagged up in eight ball denominations ready for resale, based on the fact that there was already money in the individual’s pocket that looked like possibly one bag had already been sold, based on the fact that there were no pipes, nothing to indicate the ingestion of any type of drugs, no way to use it, then why have a product on your person if you’re not going to use it. But for resale, oh, yes, it’s there, you’ve got the three bags, you’ve got the money already, you’ve got the scales to weigh it out right in the same room, you have another bag sitting next to the scales in another shoe, it’s all packaged up ready to go for distribution.” In his closing argument, defense counsel contended that the State had failed to meet its burden of proof on the distribution charge. Claiming that the State did not show a significant link between the defendant and the house in which he was found, defense counsel maintained that the State had not established that the defendant was distributing cocaine, rather than simply purchasing it.

Counsel also argued that the State had not shown that the digital scale, which was a key piece of evidence to show distribution, belonged to the defendant. During his closing argument, counsel for the defense highlighted some of the factors needed, in his view, to prove the distribution charge, and counsel asserted that the State had failed to establish such factors. Defense counsel stated: “Ownership or possessory interest in the place where the cocaine was found. It’s not his [the defendant’s] house. “Or indications that the Defendant was participating with others in the mutual use, enjoyment or distribution of cocaine.

Mr. Marshall went to the cocaine store. Mr. Marshall purchased cocaine. ²⁵⁴ “Now the State says, well, clearly he is a drug dealer because there were no smoking devices, he could have had a pipe or a can or something used to smoke cocaine. Well, again, it’s not a very good idea, particularly in light of all the facts and circumstances that have come out here today, to go to the cocaine store with your pipe and smoke it at the cocaine store. “Now, it’s not his house. Not a target of the warrant.

There was not one shred of evidence linking him to that house, other than him standing in aisle four of the cocaine store. There’s no mail, there’s nobody testifying that he stays there, he lives there, that he’s ever been there before. He’s at the cocaine store. He’s purchasing cocaine. “There are no other factors that the State can rely upon, to say he’s doing anything other than going to Sam’s Club, the cocaine store, and buying that big package of toothpaste where you get six tubes in one, because instead of paying $1.99 for a tube of toothpaste, you get them for $0.68.

Because the testimony was from the State’s expert that cocaine addicts will use cocaine as much as they can until it’s gone.” The defendant’s attorney on one occasion referred to the defendant Marshall as a “cocaine addict” and stated that the defendant was in the Fruitland house to “purchase[ ] cocaine.” The prosecuting attorney did not object to this characterization but stated in his rebuttal closing argument that “Mr. Marshall was not going to the cocaine store. Mr. Marshall works at the cocaine store. I’m not asking you, and don’t think I did ask you, to speculate on anything when I first approached you. However, I think [defense counsel] is asking you to speculate on several things.

While the State might not have introduced evidence definitively linking Mr. Marshall to the home, there is no evidence that definitively links or unlinks him to the home.” ²⁵⁵ Defense counsel objected to the above portion of the State’s closing arguments and, after both counsel approached the bench, explained to the judge as follows: “DEFENSE COUNSEL: He’s shifting the burden, Your Honor. I have no requirement to show that he [the defendant] doesn’t live there. The State has the requirement to show the link. “PROSECUTOR: I’m just indicating ... there are neutral facts. He kept saying those shoes aren’t his, how do we know the shoes aren’t his, they could be his.

There’s no evidence that says it’s not his. There’s no evidence that says it is and there’s no evidence [that] says they aren’t. “[Defense counsel] is testifying or making his own conclusions. I’m simply indicating it could go either way. I’m not burden shifting. “THE COURT: You know where the line is and you know not to cross it. “PROSECUTOR: Yes, sir.” The prosecuting attorney continued to attack the defendant’s position by arguing that defense counsel was testifying on behalf of the defendant, pointing out that counsel “was testifying and drawing his own conclusions that Mr. Marshall was buying drugs.

And I submit to you that there is not a piece of evidence that indicates that Mr. Marshall was there purchasing drugs from someone. The prosecuting attorney continued (emphasis supplied): “[Defense counsel] himself said that, again testifying for Mr. Marshall, he said he’s a cocaine addict. Now, Mr. Marshall did not take the stand so I ask you to take that with a great deal of caution when [defense counsel] tries to indicate a health problem for Mr. Marshall because there’s no evidence of that whatsoever. “What [defense counsel] is trying to do, he is trying to create doubt in your mind. He’s trying to disguise the facts, make you ignore the facts and shroud what’s right ²⁵⁶ before you.

The State has presented ample evidence of Mr. Marshall’s guilt as to felony possession and possession. There is no doubt in my mind to that ... “A very fair way to explain, I believe, reasonable doubt is if you imagine you’re doing a jigsaw puzzle. And it could be a scenic panoramic mountain view, it could be a little boy fishing. But regardless at some point as you’re putting together your jigsaw puzzle, without ever having seen the picture, you will know what the picture is before all the pieces are in place.

You will know it’s a mountain, you will know it’s a little boy fishing even though the fish isn’t there or his eye is missing or his hat is missing, you’ll know what the picture is even though you don’t have all the pieces. “There are several pieces we don’t have. We don’t have Mr. Marshall’s thoughts but we do have so many other pieces and when you put those pieces together, they spell out guilty.” Following the prosecuting attorney’s rebuttal closing argument, defense counsel moved for a mistrial, stating that “[tjwice during the State’s closing, [the prosecutor] pointed to the fact my client didn’t testify, which I think is absolutely off base.” Defense counsel also pointed out that the prosecuting attorney had “asserted to the jury that there’s no doubt in his mind that there’s sufficient [evidence], the prosecutor can’t vouch for the witnesses, they can’t vouch for the verdict.” The trial judge denied the defendant’s motion and called the prosecutor’s comments “simply rhetorical flourish,” and not a personal endorsement of a guilty verdict. Regarding the prosecutor’s comments on the defendant’s decision not to testify, the judge stated: “I didn’t believe [the prosecutor] was pointedly making reference to the fact that your client [the defendant] didn’t testify. I didn’t hear it myself but apparently ... you [defense counsel] said your client was a drug addict.

That wasn’t in the evidence.” ²⁵⁷ Defense counsel countered, stating that his comments were a “[reasonable inference from the facts,” but the trial judge was not persuaded and noted that the response of the prosecutor “was the same thing; he just simply said there was no evidence showing that your client was a drug addict and we can’t get inside the defendant’s mind, which is ... a truism. So your motion for mistrial is denied.” The Court of Special Appeals, affirming the judgment in an unreported opinion, held as follows: “We hold that the prosecutor’s comments were a satisfactorily tailored ‘invited response.’ The prosecutor’s comments were in rebuttal of defense counsel’s assertion during his closing argument that appellant was a cocaine addict. That fact, as the trial court noted during the bench conference, was not in evidence. Consequently, the prosecutor was entitled to respond in order to bring the jury back to a ‘fair and calm consideration of the evidence,’ ... and that is exactly what the prosecutor did.” This Court granted the defendant’s petition for a writ of certiorari, Marshall v. State, 404 Md. 658 , 948 A.2d 70 (2008).

The State did not file a cross petition for a writ of certiorari. The defendant’s petition presented two questions which we have rephrased as follows: 1. Did comments made by the prosecutor regarding the defendant’s decision not to testify constitute a permissible “invited response” in the context of the closing arguments, or, to the contrary, did the comments violate the defendant’s privilege against self-incrimination? 2. Was defendant deprived of a fair trial because of cumulative, improper remarks made by the prosecutor?

We shall hold that the prosecuting attorney’s comments did not constitute a permissible “invited response.” Instead, those comments infringed upon the defendant’s rights under Article 22 of the Maryland Declaration of Rights and Maryland Code (1974, 2006 RepLVoL), § 9-107 of the Courts and Judicial Proceedings Article. Accordingly, we shall reverse ²⁵⁸ and remand the case for a new trial without addressing the second question.

II

The petitioner, in arguing that his “right to remain silent” was violated by the prosecuting attorney’s comments to the jury referring to petitioner’s decision not to testify, relies on the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution, 1 Article 22 of the Maryland Declaration of Rights, 2 and § 9-107 of the Courts and Judicial Proceedings Article. 3 ²⁵⁹ This Court has on several occasions pointed out that the privilege against self-incrimination protected by Article 22 of the Maryland Declaration of Rights “generally ” is “in pari materia” with the Self-Incrimination Clause of the Fifth Amendment. See, e.g., Crosby v. State, 366 Md. 518 , 527 n. 8, 784 A.2d 1102 , 1107 n. 8 (2001), cert. denied, 535 U.S. 941 , 122 S.Ct. 1325 , 152 L.Ed.2d 233 (2002); Choi v. State, 316 Md. 529 , 535 n. 3, 560 A.2d 1108 , 1111 n. 3 (1989); Adkins v. State, 316 Md. 1 , 6 n. 5, 557 A.2d 203 , 205 n. 5 (1989). Nonetheless, as pointed out by Judge Battaglia for this Court in Crosby v. State, supra, 366 Md. at 527 n. 8, 784 A.2d at 1107 n. 8, “we have previously interpreted Maryland’s privilege against self-incrimination to be more comprehensive than that of the federal government.” See also Crosby v. State, supra, 366 Md. at 534 , 784 A.2d at 1111 (Harrell, J., concurring, and referring to “the greater protections offered by Art. 22 of the Maryland Declaration of Rights than the Fifth Amendment”); Hardaway v. State, 317 Md. 160, 164-169 , 562 A.2d 1234, 1236-1238 (1989) (holding, contrary to federal law, that a jury instruction that no adverse inference should be drawn from a defendant’s election not to testify should not be given over the defendant’s objection); Choi v. State, supra, 316 Md. at 535 n. 3, 560 A.2d at 1111 n. 3 (referring to “situations where the privilege under Art. 22 has been viewed differently, and more broadly, than the privilege under the Fifth Amendment”); Allen v. State, 183 Md. 603 , 39 A.2d 820 (1944); Chesapeake Club v. State, 63 Md. 446, 457, 462 (1885). 4 ²⁶⁰ Although the petitioner, as previously mentioned, relies on both the Fifth Amendment and Maryland self-incrimination law (Article 22 of the Declaration of Rights and § 9-107 of the Courts and Judicial Proceedings Article), we shall rest our decision, as we have often done in the past, solely upon the Maryland provisions. As Judge Wilner for the Court emphasized in Perry v. State, 357 Md. 37 , 86 n. 11, 741 A.2d 1162 , 1188 n. 11 (1999), regarding a decision under Article 21 of the Maryland Declaration of Rights, our citation and quotation of federal authority is “for guidance only” and our decision is based entirely on Maryland law.

See Michigan v. Long, 463 U.S. 1032, 1041 , 103 act 3469, 3476, 77 L.Ed.2d 1201, 1214 (1983). See also Ohio v. Robinette, 519 U.S. 33, 36-37 , 117 S.Ct. 417, 420 , 136 L.Ed.2d 347, 353 (1996); Arizona v. Evans, 514 U.S. 1, 6-10 , 115 S.Ct. 1185, 1189-1190 , 131 L.Ed.2d 34, 41-42 (1995). ²⁶¹ III. A. “This Court has maintained that the right to remain silent ‘has always been liberally construed in order to give fullest effect to this immunity.’ ” Crosby v. State, supra, 366 Md. at 527 n. 8, 784 A.2d at 1107, n. 8 , quoting Allen v. State, supra, 183 Md. at 607 , 39 A.2d at 821 . See, e.g., Choi v. State, supra, 316 Md. at 536, 560 A.2d at 1111 (“This Court has repeatedly emphasized that the privilege against compelled self-incrimination, under ...

Art. 22 of the Declaration of Rights, ‘must be accorded a liberal construction in favor of the right that it was intended to secure’”); Adkins v. State, supra, 316 Md. at 8, 557 A.2d at 206 (same); Ellison v. State, 310 Md. 244, 248, 258 , 528 A.2d 1271, 1273, 1278 (1987) (“Contrary to the view of the court below, [that testimonial privileges, including the privilege against self-incrimination, are disfavored,] the privilege against self-incrimination ‘must be accorded liberal construction in favor of the right it was intended to secure’ ”); State v. Comes, 237 Md. 271, 282 , 206 A.2d 124, 130 (1965). Moreover, our cases have long held that a criminal defendant’s rights under Article 22 of the Maryland Declaration of Rights and § 9-107 of the Courts and Judicial Proceedings Article preclude comment by a prosecutor on a defendant’s decision not to testify. In fact, as pointed out by Judge Raker for the Court in Smith v. State, 367 Md. 348, 353 , 787 A.2d 152, 155 (2001), “[c]omment upon a defendant’s failure to testify in a criminal trial was prohibited in Maryland before the United States Supreme Court, in Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965), held that the federal constitutional right against compelled self-incrimination prohibits prosecutorial comment on the accused’s silence or failure to testify.” See Woodson v. State, 325 Md. 251, 265 , 600 A.2d 420, 426 (1992) (“Well before Griffin, our cases prohibited [the] practice” of “comment on a defendant’s failure to testify”); Veney ²⁶² v. State, 251 Md. 159, 179 , 246 A.2d 608, 620 (1968), cert. denied, 394 U.S. 948 , 89 S.Ct. 1284 , 22 L.Ed.2d 482 (1969) (“It is clear that in Maryland comment upon a defendant’s failure to testify in a state criminal trial was forbidden long prior to Griffin v. California ”). Thus, in Smith v. State, 169 Md. 474 , 182 A. 287 (1936), this Court held that it was improper for the prosecuting attorney to comment upon a