Smith v. State

Everett Smith v. State of Maryland, No. 1273, Sept. Term 2020. Opinion filed on October 27, 2021, by Berger, J. INHERENT PREJUDICE - RIGHT TO FAIR TRIAL - “THIN BLUE LINE” FLAG FACE MASK The appellant was not deprived of his constitutional right to a fair trial when the trial court permitted a uniformed law enforcement officer serving as a courtroom bailiff to wear a “thin blue line” flag face mask in the courtroom. The “thin blue line” flag symbol does not have one generally accepted meaning and is interpreted to mean a wide variety of things. Because a wide range of inferences could be drawn from the “thin blue line” flag face mask, the wearing of this symbol by a uniformed law enforcement officer did not constitute inherent prejudice that deprived the accused of his right to a fair trial.

CLOSING ARGUMENT - SCOPE OF CLOSING ARGUMENT - RHETORICAL FLOURISH The trial court did not commit reversible error by overruling defense counsel’s objection to the prosecutor’s closing arguments when the prosecutor described the teenage victim who testified at trial as having been “dragged through the mud” and argued to the jury that the victim’s mental health history “did not matter.” The comments were an attempt to encourage the jurors to consider the victim’s perspective when assessing the credibility of her testimony and were within the scope of permissible closing argument. Circuit Court for Kent County Case No. C-14-CR-19-000193 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1273 September Term, 2020 ______________________________________ EVERETT SMITH v. STATE OF MARYLAND ______________________________________ Berger, Wells, Ripken, JJ. ______________________________________ Opinion by Berger, J. ______________________________________ Filed: October 27, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2022-02-10 11:07-05:00 Suzanne C. Johnson, Clerk Following a jury trial in the Circuit Court for Kent County, Everett Smith, appellant, was convicted of second-degree child abuse and second-degree assault. On appeal, Smith presents two issues for our review, which we have rephrased as follows: 1. Whether Smith’s right to a fair trial by a fair tribunal was violated when the circuit court denied Smith’s request that courtroom bailiffs not wear “thin blue line” face masks during Smith’s trial. 2.

Whether the circuit court abused its discretion in its regulation of the prosecutor’s closing argument. For the reasons explained herein, we shall answer both questions in the negative and affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND On October 3, 2019, an altercation occurred between Smith and his fourteen-year-old daughter, L.H. At the time, L.H. and Smith were both residing at L.H.’s grandmother’s home. L.H.’s telephone privileges had been revoked due to her behavior, but L.H. picked up a cordless telephone in the dining room to make a telephone call.

L.H.’s grandfather had recently passed away, and L.H. wanted to call her other grandmother, whom L.H. described as her “safe person” in times when she was “in a state of mind where it’s not really safe for [her].” L.H. was feeling “very anxious” and was experiencing a “panic attack.” L.H. had previously experienced panic attacks, which presented with symptoms including “blanking out,” where she did not “have full recollection of things” and was “not fully aware.” Smith saw L.H. pick up the cordless phone and began yelling at her, asking, “What are you doing and who are you calling?” Smith “grabbed the phone from [L.H.]” and hung it up. When L.H. “went to grab it again,” Smith “got close to [L.H.] and smashed the phone on [her] head and threw it on the floor.” Smith “continued to be in [L.H.’s] face so [she] couldn’t really get away.” L.H. “pushed him away gently” in order to “get away from the situation.” She walked toward the door, but Smith “got in [her] face right after that and began to hit [her].” Smith “punch[ed]” her multiple times on her head. L.H. “put [her] hands up on [her] head to try to protect [her]self as much as [she] could,” but Smith continued to strike her. L.H. “tried to go out the back door,” but Smith “continued to follow [her], cuss at [her], scream at [her] and everything.” L.H. eventually was able to get out of the house.

She ran out into the street screaming for help. L.H. ran down the street to her cousin’s house. L.H. told her cousin that Smith was “trying to kill [her]” and asked her cousin to call the police, but she did not. L.H. went to her aunt’s porch “which was across the street” and saw Smith standing “outside trying to block the door” of L.H.’s grandmother’s house.

Ultimately, L.H. spent the night at her cousin’s house. L.H. was “not feeling well” and was “dizzy.” She was able to sleep that night, but the next morning, she vomited after eating breakfast. L.H.’s aunt called 911 and L.H. was subsequently transported to the hospital by an ambulance. On cross-examination, defense counsel inquired, inter alia, as to whether L.H. remembered the incident accurately in light of the panic attack she was experiencing at the time.

L.H. testified regarding her mental health history, explaining that she had received a 2 “pre-diagnosis” of bipolar disorder, which she explained as “steps to bipolar.”1 L.H. testified that she had been previously diagnosed with bipolar disorder, but medical professionals informed her “that it was a misdiagnosis.” L.H. acknowledged that she had been diagnosed with depression, anxiety, and post-traumatic stress disorder and that she was taking Prozac. When asked whether her panic attacks were “related to the diagnoses of depression, anxiety and PTSD,” L.H. responded: “Suicidal comes with my head thoughts. Those will come with the depression, anxiety and PTSD.” State Trooper Tanner Nickerson, the officer who responded to L.H.’s aunt’s 911 call, testified at trial. Smith told Trooper Nickerson that he struck L.H. “one time with an open hand.” When Trooper Nickerson asked Smith how many times he hit L.H., Smith “stated ‘I’m not really sure.’” Smith told Trooper Nickerson that “he wished to press charges on [L.H.]” because “he did nothing wrong and he was in self-defense.” Trooper Nickerson went to the hospital where L.H. had been transported.

Trooper Nickerson testified that “[t]he doctor told me directly that, yes, they did a brain scan on [L.H.] that came back clear” but “[t]hey believe that she had received a concussion.” Trooper Nickerson did not observe any other physical injuries on L.H. Trooper Nickerson testified that L.H. told him that she had been struck with hands and elbows on her head. Smith called L.H. as a witness during his case-in-chief. When defense counsel inquired as to whether L.H. had “any long-term problem as a result of [her] concussion,” L.H. answered that she experienced headaches as a result of her injuries. 1 L.H. testified that the “only reason [medical professionals] said that [she had bipolar disorder] is because [her] parents have it.” 3 Smith was convicted of second-degree child abuse and second-degree assault stemming from this incident. He received a sentence of fifteen years’ imprisonment with all but five years suspended for the child abuse offense and a concurrent sentence of five years’ imprisonment for the assault offense, to be followed by a five-year term of probation.

Smith noted a timely appeal. Additional facts shall be discussed as necessitated by our consideration of the issues raised on appeal. I. The first issue raised by Smith on appeal focuses upon the trial court’s denial of Smith’s request that the trial court prohibit bailiffs from wearing “thin blue line” flag face masks in the courtroom.2 Prior to the start of the trial, defense counsel objected to the “thin blue line” flag face mask that courtroom bailiffs were wearing, raising the issue in the following exchange: [DEFENSE COUNSEL]: So the defense has raised a couple of questions and I wanted to formally address those at this time. I think, first and foremost, we did not file a line or some sort of motion to preclude this from happening but have been communicating with the State and the [c]ourt over a period of a week or more regarding the facial coverings that the bailiffs have been ordered to wear.

These facial coverings, as I understand it, are not a choice that the bailiffs have in terms of wearing or not wearing but, rather, have been ordered by the elected sheriff of this county to be as part of their uniform. These facial coverings, for the record, depict[] what is commonly [known] as the thin blue line, American Flag. It’s 2 The trial occurred during the COVID-19 public health emergency when face masks were required throughout Maryland’s courthouses. 4 a black and white copy of an American Flag with one of the bars across instead of being in black, it is in blue. It makes a visual representation of this concept of a thin blue line as something that the police are standing between order and chaos.

That they -- it is inherently a political statement. It is often used as a counterpoint in terms of arguments about whether black lives matter and if that’s a political statement or not, this is often a counterpoint and an argument I think is inherently a political statement, especially if it’s ordered by someone elected in political office. I think that the [c]ourt can exercise its judicial power in establishing decorum and procedures in this courtroom and I think it, in fact, is inherent in judicial ethics to make sure that the Defendant receives every appearance of a fair trial and, in fact, does receive a fair trial. The Defendant, Mr. Smith, and I have discussed this matter.

He feels that the presence of this emblem on the facial coverings of the bailiffs indicates a bias in favor o[f] either police o[r] the State and therefore is preventing him from receiving -- THE COURT: Doesn’t their . . . uniform do that? [DEFENSE COUNSEL]: I don’t believe that the uniform of a police office[r] is an inherently political statement. I think that the facial covering, and this particular emblem, is used both by members of the police but also by member[s] of the public to indicate a political statement in support of police and in contradiction to some of the movements, social movements, that we’re seeing today. And, for that reason, Mr. Smith believes that having that representation on the facial coverings is making a political statement in a place that is supposed to be unbiased and providing a neutral and fair place for his trial today. THE COURT: Okay. [Prosecutor]. [THE PROSECUTOR]: Thank you, Your Honor. 5 I don’t think we can just assume that it is a political statement.

I don’t think we can take [defense counsel]’s argument for what that stands for [at] face value. There’s no evidence before the [c]ourt or the testimony from the sheriff or from the deputy what exactly this means. It simply is an American Flag with a blue stripe. There are no words present on it that convey anything.

The fact that it may even be political speech would inure more protections for it. I think that argument, you know, has a little more merit, probably not any merit, but a little more merit with a uniform versus what is protected, constitutionally protected speech. So the question is whether this mask, which it is the deputy’s constitutional right to wear, whether that infringes on the Defendant’s constitutional right to a fair and impartial trial. And I would submit that any potential bias is -- from -- from a face covering that probably nobody even noticed would be completely diminished by an officer wearing a uniform with a badge and a firearm.

And I think that this argument that this face mask needs to be swapped for something different just doesn’t hold water. Moreover, the mask, in and of itself, has more protections than a standard even paper mask that Your Honor’s wearing. It’s thick. It’s got a filter.

It serves a function[al] purpose to keep the deputies safe, beyond that which most people would wear. Now that’s argument and I can, you know, call the deputy to the stand and see if he has any knowledge of that but I don’t think that this even gets -- the Defendant hasn’t met his burden to even have this considered by the [c]ourt. There’s absolutely just conjecture and argument but really no substance. THE COURT: All right. [Defense counsel.] [DEFENSE COUNSEL]: But, Judge, an[ec]dotally, just for the [c]ourt’s awareness, a similar email was sent by the deputy 6 public defender for Baltimore County to the court system there and they agreed with the public defender in that instance that this should not be present in the court procee[dings].

I’m happy to elicit testimony from the deputy who is present in the courtroom right now regarding whether or not he has been ordered to wear this face mask. I think that the State’s argument that it’s political speech and it would be the deputy’s choice, is not present here because then he -- I don’t believe he has the choice whether or not to wear that. I think the only thing that would prevent him from wearing that is an order from this [c]ourt. The trial court “assume[d], for the sake of argument [that the mask is] a political statement,” noting that “that’s only one possible interpretation.” The trial court commented that “the case law is pretty clear that the courthouse is a public forum and that it’s -- political speech is constitutionally protected and any regulation to limit it has to be narrowly tailored to serve a compelling government interest.” The trial court further commented that “it’s the [c]ourt’s ability to enforce the decorum as the [c]ourt sees fit but it has -- that has to be done within the framework of the constitution.” Ultimately, the court denied Smith’s request, explaining its ruling as follows: Well, the [c]ourt’s heard argument here today.

The [c]ourt’s going to find that while it is, you know, arguable, it’s potential that these are intended to be a political statement, there is no evidence to suggest that that’s what, in fact, it is; that it’s merely something that the elected sheriff of this county has purchased for whatever reason and required his deputies to wear that it -- that even if it does reach the level of being only worn for -- to make some sort of political statement, that it’s protected by the First Amendment to the Constitution in a public forum and therefore the [c]ourt’s going to deny the request. 7 On appeal, Smith asserts that the trial court both abused its discretion and erred as a matter of law by denying his request that the court prohibit the bailiff from wearing a face mask depicting the “thin blue line” flag symbol in the courtroom. Smith contends that the “thin blue line” flag symbol is “a provocative, pro-police symbol” and asserts that the trial court “sabotaged [Smith’s] right to due process and a fair trial” by permitting the mask to be worn. As we shall explain, we shall hold that the bailiff’s wearing of the “thin blue line” mask in the courtroom was not so inherently prejudicial as to deprive Smith of a fair trial. First, we briefly address Smith’s contention that the trial court incorrectly applied the First Amendment standard for a public forum rather than a nonpublic forum.

Smith devotes several pages of his brief to his argument that the trial court erred by determining that the symbol on the bailiff’s mask “was protected by the First Amendment to the Constitution in a public forum.” Smith asserts that the trial court’s determination that a courthouse is a public forum was incorrect. The State concedes that although this precise issue has not been addressed by this Court or the Court of Appeals, the weight of authority outside Maryland has found that a courtroom is a nonpublic forum for First Amendment purposes. We agree. See, e.g., Mezibov v. Allen, 411 F.3d 712, 718 (6th Cir. 2005) (“The courtroom is a nonpublic forum, where the First Amendment rights of everyone (attorneys included) are at their constitutional nadir.

In fact, the courtroom is unique even among nonpublic fora because within its confines we regularly countenance the application of even viewpoint-discriminatory restrictions on speech.”); Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (“A courthouse -- and, especially, a courtroom -- is a nonpublic forum.”). 8 In a nonpublic forum, the government has “much more flexibility to craft rules limiting speech” and “may reserve such a forum ‘for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.’” Minnesota Voters Alliance v. Mansky, ___ U.S.___, 138 S. Ct. 1876, 1885 (2018) (quoting Perry Ed. Assn. v. Perry Local Educators’ Assn., 460 U.S. 37, 46 (1983)). In this case, however, in light of our determination that the wearing of the “thin blue line” flag face mask did not constitute inherent prejudice necessitating a new trial, which we shall explain, we need not delve further into the public forum issue. Smith asserts that the trial court’s decision to permit the courtroom bailiff to wear a “thin blue line” face mask in the courtroom was so inherently prejudicial as to deprive him of his right to a fair trial. We note that Smith does not assert actual prejudice as a result of the bailiff’s mask.

Rather, Smith asserts that the bailiff’s thin blue line face mask was inherently prejudicial. “[C]ertain courtroom practices are so inherently prejudicial that they deprive the defendant of a fair trial.” Carey v. Musladin, 549 U.S. 70, 72 (2006). “Whenever a courtroom arrangement is challenged as inherently prejudicial, therefore, the question must be not whether jurors actually articulated a consciousness of some prejudicial effect, but rather whether ‘an unacceptable risk is presented of impermissible factors coming into play.’” Holbrook v. Flynn, 475 U.S. 560, 570 (1986) (quoting Estelle v. Williams, 425 U.S. 501, 505 (1976). 9 The Court of Appeals has explained that the determination of whether a particular courtroom practice “violate[s] a defendant’s due process rights must be made upon a case- by-case basis.” Bruce v. State, 318 Md. 706, 721 (1990). A reviewing court must look at the scene presented to jurors and determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat to defendant’s right to a fair trial; if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over. Id. (quoting Holbrook, supra, 475 U.S. at 572 ).

Practices that have been held to be inherently prejudicial include the compelling of an accused to stand trial before a jury while dressed in identifiable prison clothes, Estelle, supra, 425 U.S. at 512 ,3 and the “use of physical restraints visible to the jury, absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial.” Deck v. Missouri, 544 U.S. 622, 629 (2005). Inherent prejudice is “difficult to establish.” Hill v. Ozmint, 339 F.3d 187, 199 (4th Cir. 2003). In contrast, the presence of identifiable law enforcement officers in the courtroom does not generally implicate a due process concern: The chief feature that distinguishes the use of identifiable security officers from courtroom practices we might find inherently prejudicial is the wider range of inferences that a juror might reasonably draw from the officers’ presence. While shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large, the presence of guards at a defendant’s trial need not be interpreted as a sign that he is particularly dangerous or culpable.

Jurors may just as easily believe that the officers are there to guard against disruptions emanating 3 In Estelle, the Court held that the defendant in that case had waived any objection to being tried in prison clothes by failing to object at trial. Id. at 512-513. 10 from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence. Indeed, it is entirely possible that jurors will not infer anything at all from the presence of the guards. If they are placed at some distance from the accused, security officers may well be perceived more as elements of an impressive drama than as reminders of the defendant’s special status.

Our society has become inured to the presence of armed guards in most public places; they are doubtless taken for granted so long as their numbers or weaponry do not suggest particular official concern or alarm. See Hardee v. Kuhlman, 581 F.2d 330, 332 (CA2 1978). Bruce, supra, 318 Md. at 718 -19 (quoting Holbrook, supra, 475 U.S. at 569 ) (emphasis supplied). Smith asserts that the “thin blue line” flag symbol is an inherently political symbol that has become popularized as a response to the Black Lives Matter movement and that the presence of this symbol on a mask worn by a courtroom bailiff deprived him of a fair trial.

Smith cites an NPR article discussing the controversy around the “thin blue line” flag symbol, observing that proponents say that the symbol “is meant to represent the men and women in blue standing as a line between law and order . . . and it’s been hung as a show of police pride and solidarity.” Smith, T. Thin Blue Line Flags Stir Controversy in Mass. Coastal Community, NPR (July 1, 2020), available at https://www.npr.org/2020/07/ 31/897615425/thin-blue-line-flags-stir-controversy-in-mass-coastal-community (accessed October 7, 2021), archived at https://perma.cc/2H4W-8H77. The article explains that others characterize the symbol differently, observing that “[b]ecause the flag has also been associated with white supremacist groups, some say it symbolizes a blatantly racist agenda. And since it has also been adopted by the ‘Blue Lives Matter’ movement, which launched 11 in response to the Black Lives Matter movement, many believe it connotes opposition to the goals of ending police brutality and systemic racism.” Id.

In further support of his assertion that the bailiff’s “thin blue line” flag face mask was inherently prejudicial, Smith points to