Sivells v. State

GRAEFF, J. A jury sitting in the Circuit Court for Baltimore City convicted appellant, Bryan Sivells, of possession of cocaine. The court sentenced appellant to seven years imprisonment. 1 Appellant presents three questions for our review, which we have rephrased: 1. Was the appellant denied a fair trial by the prosecutor’s comments in rebuttal closing argument, where the prosecutor commented on the credibility of the State’s witnesses? 2. Did the trial court err in denying appellant’s motion to suppress the cocaine found on appellant’s person because the State did not have probable cause to arrest? 3.

Did the trial court err in admitting expert fingerprint testimony as rebuttal evidence? For the reasons set forth below, we hold that the prosecutor’s statements in closing argument constituted reversible error. Accordingly, we shall reverse the judgment of the circuit court. ²⁶³ FACTUAL AND PROCEDURAL BACKGROUND I. Suppression Hearing At approximately 10:45 p.m. on July 30, 2008, Detectives Thomas E. Wilson, III and Isaac Carrington responded to a complaint of narcotics activity at the corner of 20th and Boone Streets in Baltimore City. Detective Wilson, who was accepted as an expert in the “identification, packaging, and sale of narcotics,” testified that, after patrolling Boone Street for approximately five minutes, he “observed an unknown black female entering the area.” The woman approached an unknown man and asked: “[I]s any ready out[?]” Detective Wilson testified that “ready” was a street term used to refer to crack cocaine.

The man directed the woman toward an alley where appellant was standing. The woman approached appellant, spoke briefly to him, and pulled out money. Appellant then reached into his right sock. Based on his training and experience, Detective Wilson believed that a drug transaction was occurring.

At that point, and prior to any distribution of drugs, Detectives Wilson and Carrington approached appellant. Detective Wilson testified that Detective Carrington searched appellant and recovered 13 ziploc bags of cocaine from appellant’s right sock. Detective Carrington then testified. His testimony corroborated that of Detective Wilson.

The State argued that the detectives’ observations, coupled with Detective Wilson’s expertise in the sale of narcotics, provided sufficient probable cause to arrest appellant, and the ensuing search of appellant was proper as a search incident to a lawful arrest. Defense counsel argued that the drugs should be suppressed, attacking the credibility of the detectives’ testimony, stating that the detectives never actually saw any drugs before searching the appellant, and questioning whether the unidentified man or woman actually existed. 2 ²⁶⁴ The trial court denied appellant’s motion to suppress, finding that the detectives had probable cause to believe that appellant had drugs in his sock. The court noted that the detectives saw the woman ask for “ready,” approach appellant and take her currency out of her purse, and appellant then go for his sock. The court stated that “[ujnseen or unknown objects exchanged for currency constitutes probable cause.” II.

Trial Proceedings On July 9, 2009, trial began. The State’s first witness was Hondge Pan, a chemist. Mr. Pan testified that he tested the substance seized from appellant in the ziploc bags, and he determined that it was cocaine. During cross-examination, defense counsel inquired as to whether the ziploc bags had been submitted for fingerprint analysis, and Mr. Pan stated that he did not know, that it was “not my work.” Defense counsel pressed Mr. Pan on his knowledge regarding whether drugs were typically dusted for fingerprints.

Counsel inquired about the precautions Mr. Pan took to ensure that his fingerprints would not be on the ziploc bags should a fingerprint analysis be conducted after Mr. Pan analyzed the bags’ contents. Appellant’s counsel also inquired whether Mr. Pan had seen items submitted for analysis that had fingerprint dust on them. Mr. Pan stated: “Occasionally. Not much.” He acknowledged that the black powder could be seen by looking at the submission, and he said: “There’s no black powder in this case.” Detective Wilson testified next, and he was accepted as an expert in the “identification, packaging and sale of cocaine within Baltimore City.” He testified regarding how cocaine is packaged, explaining that it is packaged in, among other things, ziploc bags.

Detective Wilson then explained how a typical narcotics transaction occurs. A drug dealer would ²⁶⁵ have the drugs on his or her person or in a stash. A person seeking to buy drugs would approach the drug dealer, engage in a brief conversation, give the dealer money, and the dealer would give the buyer drugs. Detective Wilson then testified, consistent with his testimony at the suppression hearing, regarding the events of July 30, 2008.

He also testified that, based on his training and experience, the quantity of cocaine appellant possessed led him to believe that appellant possessed the drugs for the purposes of selling them. On cross-examination, counsel for appellant challenged the veracity of Detective Wilson’s account of events. Counsel asked Detective Wilson about his testimony in another case, where his credibility had been questioned: [DEFENSE COUNSEL]: Detective Wilson, you had the uncomfortable experience some years ago, 2003, of being, testifying in front of Andre Davis in Federal Court, the conclusion of which, Judge Andre Davis basically declared that he didn’t believe your testimony ... Judge Davis declared basically, “I find the (unintelligible) of the Affidavit to be a knowing lie.

I also find the use of the term ‘in a covert position’ to be a knowing he. I also find the assertion [that] of the unknown subject fled the area on foot to be a knowing lie. Wilson received an anonymous call, I find Detective Wilson’s testimony in that regard incredible. The government has not established it.

It rejected it. I reject that testimony. I do not find it credible. I don’t believe Detective Wilson saw what he claims he saw.

I reject that testimony. I don’t find it credible.... ” “Specifically, I find there’s no way that Detective Wilson could have made the observations he claims he made. I’ve assessed the demeanor of Detective Wilson. I’ve listened carefully to his testimony and, indeed, I’ve engaged in pressuring Detective Wilson in an effort not to impeach or undermine the governments [sic] presentation, but to satisfy in my own mind, as the finder of fact in the suppression hearing, how it could be that a narrative so implausible, and ²⁶⁶ so implausible and incredibly presented might be accepted by the Court.

Frankly, I don’t mean this as criticism, but ... the State’s Attorney argument today, shed some light,” dah-dah-dah-dah-dah. Do you recall the uncomfortable experience? Detective Wilson testified that he recalled the case, and counsel for appellant continued with this line of questioning as follows: [DEFENSE COUNSEL]: The matter resulted in your being called in front of the [Internal Affairs Division] and disciplined and given five days extra training, did it not? [DETECTIVE WILSON]: It wasn’t extra training. It was one day search and seizure training. [DEFENSE COUNSEL]: Search and seizure.

Court’s indulgence. I stand corrected, five days loss of leave and search and seizure training from neglect of duty, is that fair to say? [DETECTIVE WILSON]: That’s correct. Defense counsel then questioned Detective Wilson about his failure to gather evidence in this case to corroborate his account of events. He asked Detective Wilson whether he “could have made this all up.” On redirect, the State asked Detective Wilson to explain the discrepancies in his statements in federal court.

With respect to the affidavit that he signed, Detective Wilson explained that he had used incorrect grammar and misspelled words. Additionally, he had stated that an incident occurred in the first week of October, when it actually had occurred on October 9th, and he stated that he took a covert position when he was engaging in on-foot surveillance. Detective Wilson suggested that the “knowing lies” to which Judge Davis referred “could be characterized as misconceptions, misunderstandings.” Detective Wilson testified that he did not receive any demotion or reassignment as a result of the 2003 case. With respect to the July 30, 2008, incident in this case, Detective Wilson testified that he was telling the truth, and he had not fabricated his testimony. ²⁶⁷ On re-cross, counsel for appellant again questioned Detective Wilson regarding Judge Davis’ characterization of his affidavit as a “blatant he,” and he questioned whether “grammatical confusion” would result in Detective Wilson losing five days of pay.

Detective Wilson acknowledged that he “did lose money. I did lose time.” The State’s next witness was Detective Isaac Carrington, who was also accepted as an expert in the “identification, packaging, and the sale of narcotics in Baltimore City.” Detective Carrington’s testimony with respect to the events leading up to appellant’s arrest on July 30, 2008, was consistent with his testimony at the suppression hearing. He also confirmed the chain of custody of the 13 ziploc bags of cocaine recovered from the appellant. The drugs then were admitted into evidence.

On cross-examination, appellant’s counsel questioned Detective Carrington about the unknown male and female, noting that they were not arrested and suggesting that they did not exist. After asking Detective Carrington for details about the unknown woman’s appearance and inquiring as to why he did not take a picture of her, appellant’s counsel stated: “Because she didn’t exist so you couldn’t stop her if you wanted to[.]” Appellant’s counsel also pressed Detective Carrington for more detail about the unknown man’s description, referring to him as the “ghost man.” Counsel then questioned Detective Carrington about why he did not request that the ziploc bags be checked for fingerprints. Detective Carrington responded that he did not request fingerprints because he had recovered the ziploc bags from appellant’s sock. He subsequently testified that he never requested that drugs be fingerprinted.

On redirect, the State inquired about the fingerprint analysis protocol for seized narcotics. Detective Carrington responded that he typically did not request a fingerprint analysis for seized narcotics because the drugs are usually recovered directly from the dealer, and to the best of his ²⁶⁸ knowledge, fingerprints cannot be lifted from the packaging in which narcotics are seized. On recross, appellant’s counsel revisited the issue of fingerprint analysis. Counsel asked Detective Carrington whether he knew that “fingerprints can come off of any surface where a fingerprint oil is left on a smooth surface and preserved by good police work.” Detective Carrington answered affirmatively, and he confirmed that he had never requested to have a fingerprint analysis conducted on vials or ziploc bags.

The State then addressed the issue again, asking Detective Carrington who had told him that fingerprint analysis generally would not be ordered for drugs seized during narcotics arrests. Detective Carrington responded that he had been so advised by his supervisor and other drug units. The State then alerted the court and the appellant that it intended to call Ms. Sharon Talmadge, a fingerprint expert, to testify. The prosecutor stated that, because appellant “ha[d] gone so deeply into the fingerprints,” the State wanted to explain “why fingerprints would not be found on these types of items.” Over appellant’s objection, the court ruled that it would permit Ms. Talmadge to testify the next day.

The court instructed the appellant to call his witness, who was testifying out of order at appellant’s request because of scheduling constraints. 3 Appellant called Tabina Clanton, his sole witness, to rebut the detectives’ testimony that they saw a man, who was sitting on the steps of 700 East 20th Street, direct the unknown woman to appellant. Ms. Clanton testified that there were no steps leading to the home of 700 East 20th Street; the steps led to the house next to 700 East 20th Street. After Ms. Clanton’s testimony, the trial recessed for the day. ²⁶⁹ When court reconvened the following day, the State informed the court and appellant that Ms. Elizabeth Pattie would testify instead of Ms. Talmadge. The prosecutor advised that the State was closing its case-in-chief, not having called a fingerprint expert, and that Ms. Pattie would be testifying as a rebuttal witness.

Ms. Pattie was accepted as an expert in the field of latent prints and examination, and she explained how and why fingerprints are left on different objects. She testified about the likelihood of recovering fingerprints from a ziploc bag filled with cocaine, explaining that “over the years our chances have not been very successful for drugs.” The State called two other rebuttal witnesses, Detective Wilson and Detective Kenneth Ramburg, to testify to the location of the stairs outside 700 and 702 East 20th Street. After the rebuttal witnesses testified, the court instructed the jury and proceeded to closing arguments. The jury found the appellant guilty of possession of cocaine but not guilty of possession with the intent to distribute cocaine.

This timely appeal followed. DISCUSSION I. CLOSING ARGUMENT Appellant’s first contention is that “the State’s repeated improper vouching of its witnesses” deprived him of a fair trial. He asserts that “the State attempted to convince the jury that the police officers were credible, honest, and honorable.” Appellant argues that “[t]he credibility of the State’s witnesses was the main issue in [appellant’s] trial,” and “[w]here the jury’s assessment of witness credibility is a critical issue, an error affecting the jury’s ability to assess credibility is highly prejudicial.” The State contends that the trial court “correctly denied [appellant’s] motion for a new trial based on remarks in the ²⁷⁰ prosecutor’s rebuttal closing, where those remarks were in direct response to defense counsel’s repeated insistence that the State’s witnesses were liars who planted evidence on [appellant].” It argues that, “[a]fter throwing open the door on the issue of the officers’ personal integrity and honor,” appellant “cannot now complain that the prosecutor walked through that door in rebuttal.” An attorney has “great leeway in presenting closing arguments to the jury.” Degren v. State, 352 Md. 400, 429 , 722 A.2d 887 (1999). The Court of Appeals has explained: [I]t is, as a general rule, within the range of legitimate argument for counsel to state and discuss the evidence and all reasonable and legitimate inferences which may be drawn from the facts in evidence; and such comment or argument is afforded a wide range.

Counsel is free to use the testimony most favorable to his side of the argument to the jury, and the evidence may be examined, collated, sifted ■ and treated in his own way____Generally, counsel has the right to make any comment or argument that is warranted by the evidence proved or inferences therefrom; the prosecuting attorney is as free to comment legitimately and to speak fully, although harshly, on the accused’s action and conduct if the evidence supports his comments, as is accused’s counsel to comment on the nature of the evidence and the character of witnesses which the prosecution produces. Mitchell v. State, 408 Md. 368, 380 , 969 A.2d 989 (2009) (quoting Wilhelm v. State, 272 Md. 404, 412 , 326 A.2d 707 (1974)). Accord Clarke v. State, 97 Md.App. 425, 431 , 630 A.2d 252 (1993) (“‘[Closing argument is a robust forensic forum wherein its practitioners are afforded a wide range for expression.’ ”) (quoting Davis v. State, 93 Md.App. 89, 124 , 611 A.2d 1008 (1992)). Despite the leeway afforded to counsel in closing argument, “a defendant’s right to a fair trial must be protected.” Lee v. State, 405 Md. 148, 164 , 950 A.2d 125 (2008).

Although a prosecutor is entitled to “ ‘strike hard blows, he is ²⁷¹ not at liberty to strike foul ones.’” United States v. Young, 470 U.S. 1, 7 , 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985) (quoting Berger v. United States, 295 U.S. 78, 88 , 55 S.Ct. 629 , 79 L.Ed. 1314 (1935)). The determination whether counsel’s “remarks in closing were improper and prejudicial, or simply a permissible rhetorical flourish, is within the sound discretion of the trial court to decide.” Jones-Harris v. State, 179 Md.App. 72, 105 , 943 A.2d 1272 , cert. denied, 405 Md. 64 , 949 A.2d 652 (2008). An appellate court generally will not reverse the trial court “unless that court clearly abused the exercise of its discretion and prejudiced the accused.” Degren, 352 Md. at 431 , 722 A.2d 887 . As explained in more detail below, analysis of appellant’s contention requires several steps.

Initially, we must assess whether the prosecutor’s comments, standing alone, were improper. If so, we assess whether, in light of the argument made by defense counsel, the prosecutor’s comments were a reasonable response pursuant to the “opened door” doctrine or the invited response doctrine. If not, we must determine whether reversal is required because, under the totality of the circumstances, the comments were likely to have improperly influenced the verdict. A. Arguments of Counsel Below Appellant’s defense was that the detectives were not credible.

In his opening statement, defense counsel stated: Now, I’m going to suggest to you quite frankly that what I believe they are doing is making up two people who don’t exist. There was no woman. There was no man. They [are] coming in here with an excuse pulled out of thin air for why they drove up on somebody, shook them down, maybe found something or maybe not because I wasn’t there.

But once you’ve heard the testimony of these two police officers, you’re going to be saying to yourself I can’t believe this, I can’t believe that, where do I draw the line on what to believe[?] ²⁷² During closing argument, defense counsel continued with the theme that the officers were not credible, and he repeatedly accused the detectives of lying. Counsel stated: To base anything on, in this case to come up with any kind of conviction you have to be able to stand on Det. Wilson’s script and say I believe it, I believe it. I think, frankly, it’s almost insulting to ask you to believe half of it, let alone the whole thing.

It’s just about the most preposterous thing that we’ve spent time listening to in a court of law in Baltimore City in a long time. He didn’t see anybody, ghost male talking to ghost female. Or maybe they’re just hearing voices since now we know the steps that he’s imagining are, whoa, fifteen more feet away than he ever suspected they were. [Appellant] just stood up, or he just started walking northbound, or maybe some police ear with two guys in it says there’s nothing going on here, let’s drive up and get that guy over there by that alley. Whoa, buddy, whoa, what’s up?

What’s up? Oh, we’re just checking you out. Got anything in your pockets here? What really happened?

What really happened? Supposedly, they went into this woman citizen’s, if she exists, pocketbook. Ladies, a police officer is going into your pocketbook and you might not complain? That is what the [citizen contact] form is for.

To protect these officers. They didn’t do it because she didn’t exist. The whole thing is just pulled out of thin air. This is most bazaar [sic].

Ladies and gentlemen, and I don’t, honestly, I don’t do this in mean spirit, but if there was ever a guy who had ample notice, his credibility is suspect. It’s this Ofcr. Wilson. This is a man who was chewed out in almost unheard of fashion by a federal judge five years ago, fined, ²⁷³ fined in punishment for five days leave, which he tells us is $200 a day.

A $1,000 fine. Who among us would have a $1,000 fine from our employer and not, not start dotting every I, crossing every T, minding every P, Q, and every other letter. You just do it because that’s as close as you get to being fired. Ladies and gentlemen, there is no explanation for Det.

Wilson’s comments. There is no explanation for his false testimony. The only thing you’re going to find in here is line after line of one judge and one attorney excruciatingly agitated. Look up in the index, you don[’t] have to read the whole thing unless you want to, but if you want to, go ahead.

Look up in the index. Look under words incredible, incredibly, false, falsities, incorrect, incompetent, lie or lies, implausible, misstated, misstatements, mistake, misunderstand, negligent, perjury, offensive, shocking, worst fumbling, bumbling investigation, blatant, wrong, pretext, non-answer, inexact, in attention, improper, inarguable, inappropriate, insulting. I take no pleasure out of this. This should be a lesson somebody learned and nobody has to visit it again because we don’t have slap-dash, half-baked, imaginary witnesses and incredible evidence brought before twelve people, citizens, thirteen, pardon, madam.

Thirteen people spending three days listening to nothing. This is insulting. This is fumbling and bumbling. Not only a five day loss of money, a $1,000 fine, sent back for remedial training.

The first thing, smart thing I heard. I’ve been marking my P’s and Q’s or something to that effect after that. Well, well enough. It’s possible that this was just a really bad day in this officer’s life where everything that he’d gotten done right and everything was going smoothly and well and it just, it just, the stars were not aligned, everything was going wrong, (inaudible) maybe there’s reasons and excuses for it.

But there’s no reason ²⁷⁴ and no excuse for a prosecution based on it and there’s no basis for a conviction on it. * * * This [sic] thirteen ziplocks [sic] of cocaine. We know they’re cocaine because of Mr. Pan. We know there’s thirteen because we can count. We don’t have to take anybody’s word.

There’s [sic] thirteen. And if you doubt this, ask to see the drugs, have it cut open right here on the counter and lay them out on the counter. There should be thirteen. We haven’t done that, so there might not be.

But, there probably are. Let’s assume there’s thirteen. That’s about all we have. And Mr. Sivells got arrested, we don’t doubt that.

That’s the detail that brings us here. Mr. Sivells was arrested and accused of this. But everything else, whether these drugs were found in an alley, whether he threw a Kleenex (inaudible), here’ a bag with thirteen pills, maybe he threw this. Got a gun?

No, well, then these drugs are yours. Well, they’re not mine. What happened? We could have cameras, we could have tape recorders going on.

There’s all kinds of things we could do if we want to do this job right. Nobody’s asking for CSI, but give us something. Instead he’s just saying believe, believe a man who has already lied to us. I mean, I’ve seen some lame prosecutions.

I’ve seen some thin stuff going to the juries. This is about as thin as it ever gets. Trust me, you won’t come to court and be a juror and see a case this lame again. I sure hope not.

Thinner than thin. In its rebuttal closing, the State addressed defense counsel’s remarks regarding Detective Wilson’s credibility. The prosecutor stated: Talking about Det. Wilson.

Let’s talk about him for a minute. We’re talking about a long time veteran of the Police Department who came in here and sat here in front of all of you so that you could judge his demeanor, you could judge his behavior, the twelve, thirteen of you. You’re the ²⁷⁵ triers of fact in this case. Not something that happened back in 2003, this case, here today.

Notice how the defense spoke more about that case than they did their own case. Appellant objected and asked to approach the bench. The court overruled the objection and denied appellant’s request. The State continued: Det.

Wilson sat in front of you for almost three hours being torn apart, not once did he get angry. Not once did he loose [sic] his calm, not once did he avoid the question. He answered each question the best that he could. It doesn’t sound like someone that’s ashamed or should be hiding or embarrassed.

And he shouldn’t be. The errors that he committed back in that case, its semantics. October 9, the first week of October strike one. And “s” on complaints, so he made a grammatical error.

Oh, strike number two, that’s a lie. Come on. Not everybody is blessed with the same education as Judge Davis and [appellant’s attorney]. He made some mistakes and he admitted to them.

That is honorable, to stand here and admit that. But we’re forgetting other people testified. You never once heard the defense bring up Det. Carrington.

Shoot he was probably hoping you all would forget about him. Whole other testimony, whole other officer sitting here telling you what happened that night. And not once was his credibility brought at issue, not one time. That’s why, oh, hopefully they’ll forget about that.

Would the officers love to have cameras at their disposal and all kinds of high technology? I bet they would because then they wouldn’t have to sit there and take that abuse for several hours. But the fact remains is they’re doing the best they can with what they have to work with and since when was someone’s word not good enough. Especially two veterans who have a lot to loose [sic] by making things up, pensions, credibility, livelihood.

Everything to loose [sic] and nothing to gain. Not one thing to gain by it. There’s ²⁷⁶ enough legitimate crime going on in this city that officers don’t have to— Counsel for appellant objected, arguing that the State was vouching for its witnesses. The court overruled the objection.

The State continued its rebuttal, arguing that the number of ziploc bags recovered from the appellant, 13, indicated an intent to distribute. The prosecution then returned to the topic of the detectives’ credibility, arguing that “[t]hose officers are running towards it when the rest of us are running away from it. What they do is honorable.” The court again overruled the “[objection to vouching,” and the State continued: ‘You’ve had the ability to judge their demeanor. They are honorable men.” At that point, the court advised the jury that the prosecutor’s “opinion is not evidence in this case.

However, [the State] is permitted to draw an inference as to how you should think rather than how she thinks. You may continue.” The State continued: “Thank you, Your Honor. And two honorable men, doing their jobs, saw Mr. Sivells about to sell a female buyer drugs.” The prosecutor subsequently stated: “[The Detectives] are honorable and they told the truth.” Counsel for appellant objected again, and the court advised the jury: “Again, the State [is] sounding like its [sic] expressing its own opinion, which its [sic] not permitted to do. Please accept that as an invitation to draw an inference.” After the jury left the courtroom, the court stated: “All right, [counsel], there was a time in closing argument when you asked to approach the bench.

I didn’t think the issue was momentous enough so I didn’t honor your request. Anything you want to say, say it now.” Appellant’s counsel responded: “I was objecting to vouching, Your Honor and what initially seemed to be some burden shifting. It didn’t go very far.” The court disposed of the burden shifting issue and then read into the record a series of Maryland cases pertaining to vouching in closing arguments. The court then said: Okay.

So I made it clear to the jury that what sounded like vouching was just the effort to try to get them to draw a ²⁷⁷ particular inference and told them that the petitioners, the prosecutor’s opinion was not relevant and it shouldn’t be inferred, what she said, that she was expressing her own opinion. And then I warned [the State] don’t let it appear to be [State’s] opinion. After the verdict, appellant filed a motion for a new trial, arguing that the State’s comments during closing argument deprived him of a fair trial. The State argued that no vouching occurred, stating that the prosecutor “spoke in generalities, not in specifics and the State made no statements based on any sort of personal knowledge but rather only made statements based on the evidence ... and opposing counsel’s comments in opposing counsel[’]s closing argument.” The State also argued that the court’s contemporaneous curative instructions rendered any error harmless.

The court denied appellant’s motion, noting that the “voir dire and the instructions” informed the jury that police officers should not be afforded “greater credibility than anybody else,” and that it expressly explained to the jury that the State was not permitted to offer its opinion of the officers, but that the State was merely asking them to draw an inference as to the Detectives’ credibility. The court stated that the prosecutor’s “interjection of her personal opinion of the officer’s credibility was inartful and that she meant to say [the jury] should draw that inference.” B. Prosecutorial Vouching for Credibility The first step in our analysis is to determine whether the prosecutor’s statements, standing alone, were improper. The Court of Appeals has made clear that it “infring[es] on a defendant’s right to a fair trial ... when a prosecutor ‘vouches’ for (or against) the credibility of a witness” in its closing argument. Spain v. State, 386 Md. 145, 153 , 872 A.2d 25 (2005).

Accord Donaldson v. State, 416 Md. 467, 489 , 7 A.3d 84 (2010). “Vouching typically occurs when a prosecutor ‘places the prestige of the government behind a witness through personal assurances of the witness’s veracity ... or suggests that information not presented to the jury supports the witness’s testimony.’ ” Spain, 386 Md. at 153 , 872 A.2d 25 ²⁷⁸ (quoting United States v. Daas, 198 F.3d 1167, 1178 (9th Cir.1999)). The United States Supreme Court has explained the problems associated with prosecutorial vouching as follows: The prosecutor’s vouching for the credibility of witnesses and expressing his personal opinion concerning the guilt of the accused pose two dangers: such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant’s right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence. Young, 470 U.S. at 18-19 , 105 S.Ct. 1038 . The rule against vouching does not preclude a prosecutor from addressing the credibility of witnesses in its closing argument.

The credibility of witnesses in a criminal trial often is, as it was in this case, a critical issue for the jury to consider. Thus, as the Court of Appeals has recognized, “ “where a prosecutor argues that a witness is being truthful based on the testimony given at trial, and does not assure the jury that the credibility of the witness is based on his own personal knowledge, the prosecutor is engaging in proper argument and is not vouching.’ ” Spain, 386 Md. at 155 , 872 A.2d 25 (quoting United States v. Walker, 155 F.3d 180, 187 (3rd Cir.1998)). Appellant points to several statements to support his argument that the prosecutor in this case engaged in improper vouching: 1. The State argued to the jury that the police officers would risk losing their pensions and jobs if they gave false testimony: “[S]ince when was someone’s word not good enough.

Especially two veterans who have a lot to loose [sic] by making things up, pensions, credibility, livelihood.” 2. The State argued to the jury that the police officers are “honorable men” because of what they do: “Those officers ²⁷⁹ are running towards it when the rest of us are running away from it. What they do is honorable.... They are honorable men.” 3.

The State argued to the jury that the police officers “are honorable and they told the truth.” The first of these comments is similar to comments in other cases that the Court of Appeals has found improper. In Spain , the prosecutor argued that the State’s police witness “had a motive to testify truthfully because to testify falsely would expose him to the penalties of perjury and lead to adverse consequences to his career as a police officer.” 386 Md. at 154 , 872 A.2d 25 . The Court of Appeals held that this argument “transcended the boundaries of proper argument,” noting that the State had failed to introduce any evidence that the officer would lose benefits for providing perjured testimony. Id.

The Court further explained: Even if evidence had been admitted from which it could be inferred that a police officer would face serious employment consequences as a result of testifying falsely, we nonetheless would conclude that the prosecutor’s comments during closing argument constituted improper vouching because they also implied improperly that the witness’s status as a police officer entitled him to greater credibility in the jury’s eyes than any other category of witness about which the same might have been argued. Although the State is free to highlight the incentive, or lack of incentive, of a witness to testify truthfully, courts consistently have held that it is improper to argue that a police officer may be deemed more credible simply because he or she is a police officer. Id. at 157 , 872 A.2d 25 . Similarly, in Donaldson, supra, 416 Md. at 490 , 7 A.3d 84 , the prosecutor argued in rebuttal closing argument that the police detectives would not lie because “they want to keep their jobs.” The Court of Appeals held that, because there was no evidence supporting the argument that the police might lose their jobs if they lied, the prosecutor’s statement was improper.

Id. at 492-93 , 7 A.3d 84 . ²⁸⁰ Here, as in Spain and Donaldson , there was no evidence to support the prosecutor’s statement that the police would lose their pensions or their livelihood if they “made things up.” Accordingly, this argument was improper. In addition to arguing that the police had “a lot to loose [sic] by making things up, pensions, credibility, livelihood,” the prosecutor repeatedly referred to Detectives Wilson and Carrington as “honorable men,” and she specifically asserted that “they told the truth.” Although a single