Reidy v. State

Murphy, C. J., delivered the opinion of the Court. Appellant was convicted by a jury in the Circuit Court for Prince George’s County of second degree murder and sentenced by the court to eleven years under the jurisdiction of the Department of Correction. He contends on this appeal that the prosecutor so exceeded the bounds of permissible comment in his closing argument to the jury as to deny him his constitutional right to a fair trial. Evidence was adduced at the trial showing that on the night of June 24, 1968, the deceased Robert Goodman and the appellant left a tavern and, after heated words were spoken between them, an altercation erupted in a nearby alley.

According to appellant’s testimony, Goodman struck him a sudden blow in the neck and chin and came after, him in a menacing manner with something “shiny” in his hand. The appellant testified that he fled to his car where he obtained a gun; that he then observed the deceased drive off in his automobile, and as it appeared that he was going to drive it into him, he fired at ¹⁷¹ the deceased. The State’s evidence, on the other hand, showed that appellant chased the deceased from the alley and fired a number of shots at him at close range. The physical evidence strongly indicated that the deceased was not the aggressor and that appellant shot Goodman as he sat in his automobile.

Appellant defended the case on the theory that the killing was committed in self-defense, and the trial judge instructed the jury at considerable length on the legal principles pertaining thereto. The prosecutor then argued the State’s case to the jury, in the course of which he told the jury: “There is really no self-defense here. It is a fiction manufactured by the defense counsel.” Defense counsel promptly objected, stating that the prosecutor’s statement was “absolutely improper and out of order.” He asked the court to instruct the prosecutor to apologize. The court, responding, said: “The jury is instructed that the opening remarks that counsel gave as well as concluding remarks are not evidence in the case, and that both the State and defense counsel have a perfect right to argue the case as they feel, and we feel it is no improper remark.” After the prosecutor had concluded his argument, defense counsel stated in argument to the jury that : “ [W] hat he [the prosecutor] accused me of was an impropriety and improper action because he said the defense was something I concocted.

That is professional misconduct.” Not content to let the matter rest, the prosecutor took issue with these remarks, stating: “That is not misconduct, and Your Honor so ruled, and that is misconduct when he says something that Your Honor ruled is proper.” The court said: “All right, gentlemen, it is not evidence. Let’s cool down.” ¹⁷² I It is fundamental to a fair trial that the prosecutor should make no remarks calculated to unfairly prejudice the jury against the defendant. Meno v. State, 117 Md. 435 ; Holbrook v. State, 6 Md. App. 265 . And it is unquestionably wrong for the prosecutor in his argument to the jury to refer to any matter not testified to by the witness or disclosed by the evidence in the case.

Toomer v. State, 112 Md. 285 . On the other hand, the fact that a remark made by the prosecutor in argument to the jury was improper does not necessarily compel that the conviction be set aside. Conway v. State, 7 Md. App. 400 . The Maryland Rule is that unless it appears that the jury were actually misled or were likely to have been misled or influenced to the prejudice of the accused by the remarks of the State’s Attorney, reversal of the conviction on this ground would not be justified.

Wood v. State, 192 Md. 643 ; Holbrook v. State, supra. 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 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. In most cases involving accusations by the prosecutor ¹⁷³ before the jury that defense counsel has either suborned perjury, fabricated a defense, or both, the courts have generally refused to find that the defendant was prejudiced where no objection was made to prosecutor’s remarks. Thus, in State v. Davit, 125 S.W.2d 47 (Mo.), appellant was convicted of murder and sentenced to life imprisonment. In his closing argument the prosecutor referred to appellant’s counsel as “Dr. Lacy, the old medicine man” and accused him of going to Kansas City to establish appellant’s alibi — “so far away that the State couldn’t check it.” The prosecutor went on to say: “I will say they frame alibis; they doctor alibis; and I say Mr. Lacy, you framed this alibi and you know it.” But during this argument and in the face of these accusations, Mr. Lacy, appellant’s counsel, sat mute and made no objections of any kind.

The court said (page 54) : “In ordinary circumstances we would reverse and remand the cause for this argument alone. For the sake of the dignity of the court, if nothing else, counsel ought to have been curbed, if he would not restrain himself. Conceding for the sake of argument that the foul odors of this case arose from a criminal cesspool, that is no reason why they should he permitted to permeate the court room. But the trial is done.

The question now before us is one of reversible error affecting the rights of the appellant. When the prosecutor made his nauseating charges appellant’s counsel sat silent. The prosecutor had a right to argue from the record, within the bounds of professional decorum, that the alibi testimony was false. He was suffered to go on without objection or restraint until after the most vituperative part of the argument had been made.

It appears from the record that both sides were allowed the widest latitude. We do not know what appellant’s counsel said in their argument. In this situation we cannot hold the argument was reversible.” ¹⁷⁴ In Johnson v. United States, 162 F. 2d 562 (9th Cir.), rev’d on other grounds, 333 U. S. 10 , where appellant had been convicted of purchasing opium contrary to a federal statute, the deputy district attorney told the jury that he believed defense counsel had “concocted” and “made up” the “‘story” of the defense. Defense counsel took no exception to these remarks.

The court instructed the jury that the verdict should be drawn from evidence introduced and that “statements, if any, by counsel or the court, unsupported by your own recollection of the evidence, you will disregard.” At the conclusion of the judge’s instructions, defense counsel, when asked, said, “Your honor, I have no exceptions at all.” The court said (page 564) : * * The remarks which were complained of only after the verdict of guilty had come in constitute a good example of the way the government should not present a ease to the jury. However, the evidence in the case just about demonstrates appellant’s guilt, and it is hardly conceivable that the accusations by government counsel could have influenced the verdict in the slightest. Since we hold this view and since counsel for the appellant was satisfied with the situation at the time the case was given to the jury, we hold that the misconduct did not constitute reversible error.” In Karikas v. United States, 296 F. 2d 434 (D.C. Cir.), where the appellant sought review of her conviction of forgery and uttering checks in interstate commerce, defense counsel was accused by the prosecutor, during his summation to the jury of reserving his opening statement to permit himself and the appellant “an opportunity to weave a defense after the close of the government’s case.” In rejecting appellant’s contention that these remarks prejudiced her, the court said (page 438) : “* * * It is noted that appellant did not object ¹⁷⁵ to the prosecutor’s remarks at the time they were made, and did not request the court to instruct the jury to disregard them. Having failed to do so, and the matter not amounting to plain error affecting substantial rights, she cannot complain here that she was prejudiced by what was said by Government counsel. * * * “Moreover, the fact that appellant’s trial counsel did not object indicates he did not regard the prosecutor’s remarks as a reflection upon him or his client; * * In Newton v. State, 147 Md. 71 , one of the issues before the jury was whether the defendant had made an audit; the State claimed that he had not and the following occurred: “By the court: Now that is the State’s point of view, but still can’t this [defendant] show that they did make an audit?

By Mr. Leach [prosecutor] : No, sir, because I have tried this very [defendant] and heard him swear that he did not.” In response to appellant’s objection that this statement was prejudicial, the court said (page 92) : “* * * 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 [defendant] 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.” Most courts have held that improper statements of this ¹⁷⁶ kind, even though prejudicial, furnish no ground for reversal where the court promptly withdrew the offending remarks from the jury by instructing it to disregard them. See Cohen v. State, 173 Md. 216, 230-232 ; where the court ruled them out as improper, Callan v. State, 156 Md. 459, 468-469 ; Cox v. State, 3 Md. App. 136, 141 ; State v. Reid, 39 N. W. 796 (Minn.); State v. Shores, 7 S. E. 413 (W. Va.); where the prosecutor was admonished by the court and thereupon apologized, Wheeless v. State, 18 S. E. 303 (Ga.); or where the court acted in such a manner as to render the remarks and statements harmless, Miller v. State, 10 S. W. 445 (Tex.); Dale v. State, 15 S. E. 287 (Ga.). In Criglow v. State, 36 S.W.2d 400 (Ark.), where appellant was convicted of robbery, the prosecutor accused defense counsel in his jury summation of being “an expert in establishing the defense of an alibi.” The court, in finding