Walls v. State

DEBORAH S. EYLER, J. A jury in the Circuit Court for Baltimore County convicted Bryant Walls, the appellant, of two counts of first degree murder and one count of first degree burglary. The court sentenced him to two consecutive life terms for murder and a concurrent ten year term for burglary. He noted an appeal, presenting five questions, which we have combined and rephrased as four: I. Did the trial court err by denying his motion for a mistrial based upon the prosecutor’s remark during opening statement that the jurors would hear the appellant “testify”?

II

Did the trial court err by declining to give his requested jury instructions on the crime of burglary and by its answers to questions from the jury about that crime?

III

Did the trial court err by admitting a recording of a telephone call that he made from the Baltimore County Detention Center?

IV

Did the trial court err by denying his motion to dismiss the charges against him or to exclude the testimony of two State’s witnesses as a sanction for alleged prosecutorial misconduct? For the following reasons, we shall affirm the judgments of the circuit court. ⁶⁵² FACTS AND PROCEEDINGS Just after 2 a.m. on December 2, 2012, Walls killed Okemia Walls (“Okemia”), his estranged wife, and William Cunningham, her boyfriend. The charges against him were tried to a jury over five days in May 2014. The State’s theory of prosecution was that the murders were willful, deliberate, and premeditated, and were committed in the course of a first degree burglary.

Walls did not dispute his criminal agency, but took the position that he had killed the victims without premeditation or deliberation, and in hot-blooded response to legally adequate provocation, thereby mitigating the crimes to voluntary manslaughter. He disputed that he had the requisite intent to commit first degree burglary. We summarize the relevant evidence adduced at trial. Walls and Okemia had known each other for 23 years and had been married for 7 years.

They had no children together, but each had adult children from prior relationships. At the beginning of 2012, Walls and Okemia were living at 24 Venus Court, a two-story townhouse in the Northbrooke Township development in Parkville. Okemia’s daughter, Meishon Moore, was the lessee of the townhouse and lived there as well. Venus Court is comprised of three groupings of townhouses configured in a U with a parking lot in the center.

Sometime in the spring or summer of 2012, Walls and Okemia separated. Walls moved in with his brother, Rick Walls (“Rick”), and Rick’s wife, Angela Walls (“Angela”), in their home in Joppa, Harford County. According to Moore, Walls took all of his belongings with him, did not retain a key to 24 Venus Court, and did not have permission to be in the home thereafter. 1 Cherod Hicks was living in an apartment at 1 Venus Court with his roommate, Whitney Franklin. Hicks and Franklin were friends with Walls and Okemia.

Around 7 p.m. on December 1, 2012, Hicks called Walls and told him that a ⁶⁵³ friend had attended a gathering at 24 Venus Court that day and had observed Okemia with a male companion. Upon hearing this, Walls got pretty “upset” and said, “This is why I wanted to be finished with her.” He asked Hicks to come pick him up. Hicks agreed, but later changed his mind. He fell asleep and awoke around midnight.

His cell phone showed 15 missed calls from Walls. He did not call him back. Meanwhile, at 11 p.m., Okemia, Cunningham, Moore, and Moore’s boyfriend left 24 Venus Court and went to a local bar. Around 1:15 a.m.

(by now December 2, 2012), Okemia and Cunningham returned to 24 Venus Court. Moore and her boyfriend stayed at the bar until 1:30 a.m. They drove to pick up some food and then returned to 24 Venus Court. Moore, who was behind the wheel, pulled into the parking lot between the townhouses around 2 a.m.

She saw Walls crossing the parking lot, walking toward her car. She opened her window and asked him what he was doing there. Walls was sweating and appeared angry. He replied that “he had to get that nigga” or that he had to “kill that nigga.” Moore closed her window and drove away in a panic.

She pulled around the corner and parked. She called Okemia’s cell phone, but there was no answer. She then called Cunningham’s cell phone, but that call also went unanswered. She called 911.

Shortly thereafter, Deanna Hunter, who was living at 30 Solar Circle, one street over from Venus Court, heard loud voices outside. She looked out her window and saw a man “pinn[ing]” a woman against an SUV and stabbing her with a knife. The woman fell to the pavement. Hunter heard the man say, “I told you I was gonna get you” as he was stabbing the woman.

She called 911. While on the phone with the 911 operator, Hunter saw the perpetrator walk away. She went outside to render aid to the victim. She told the 911 operator that the woman was on her stomach, was bleeding profusely, and there was a “knife broken off in her back.” Meanwhile, Moore had driven back into the parking lot on Venus Court.

She noticed that the front door of 24 Venus ⁶⁵⁴ Court was wide open. She jumped out of her car and ran toward her townhouse. Walls was sitting on the outdoor air conditioning unit for the neighboring townhome. He said, “Mi, your mother is dead.

I killed them both.” Moore ran inside the house and found Cunningham lying on the floor in the master bedroom “bleeding to death.” She could not find her mother. Moore’s next door neighbor, Dawn Green, came outside. Green, who is a retired police detective, had been awakened by a loud thud, some faint screaming, and the sound of footsteps next door. She then heard someone knocking on the door of a nearby townhouse, later determined to be 30 Venus Court.

She heard a female voice say, “Who is it,” and a male voice reply, “Bubbles.” (Walls’s nickname is Bubbles.) The female voice asked, “Well, what do you want?” The male voice replied, “I just killed M[ami],” which was the nickname Walls used for Okemia. Green retrieved her gun and police badge, and told her husband to call 911. She ran next door and, finding the door open, went inside and called out for Okemia. No one answered.

She went upstairs and found Cunningham lying on the bedroom floor bleeding from the upper torso. He was still alive but could not speak. She told him she would get help. Green ran back outside and saw Walls sitting on an air conditioning unit.

She asked him where Okemia was and he replied, “I killed her.” Green displayed her gun and identified herself as a police officer. Walls took off running in the direction of Solar Circle. Green pursued him and yelled that she would shoot if he didn’t stop. He exclaimed, “It’s me.

I did it. I did it. Don’t shoot.” By then, Baltimore County Police Department (“BCPD”) Officers Conrad Butler and Daniel Burns had arrived at Solar Circle. They found Okemia, partially clothed and lying face down on the pavement, with “horrific injuries on her back.” A “tip of a piece of metal” was sticking out of her spine.

Officer Burns recognized it as the base of a knife blade that had broken off. A black knife handle was found in the grass by ⁶⁵⁵ her arm. The officers immediately observed Walls running toward them, hands in the air, with Green in pursuit. Walls was shouting, “I did it.

I did it.” The officers yelled for Walls to get on the ground. He complied and they placed him under arrest. His hands were covered in “wet, dripping blood.” Walls began to cry. He told the officers that the woman on the ground was his wife.

He said he had found her in bed with another man. Indicating with his head toward 24 Venus Court, he said he had “left another one up there.” Officer Butler entered 24 Venus Court and found Cunningham’s body. Cunningham and Okemia were pronounced dead at the scene. A BCPD crime technician photographed damage to the front door, doorframe, and casing at 24 Venus Court, as well as a muddy shoe print on the outside of the door.

She also photographed blood smears on the door of 30 Venus Court. At trial, a video recording of an oral statement Walls gave to the police on December 2, 2012, was played for the jury. In the statement, Walls said he and Okemia had been reconciling and were planning to buy a house together. They had gone to the Siesta Motel on November 29, 2012, where they had sex.

While they were there, Okemia received a call on her cell phone from a contact labeled “my baby.” Walls answered Okemia’s cell phone, and a man was on the line. Walls became angry and accused Okemia of cheating on him. She denied that she and the other man were romantically involved. According to Walls, on December 1, 2012, he called Hicks and said he was going to come by his house (at 1 Venus Court) later that night to give Franklin some money to take to Okemia.

Around 1:45 a.m. (on December 2, 2012), Walls hailed a “hack” cab in Joppa and was dropped off near an elementary school next to the Northbrooke Township development. From there, he walked toward 1 Venus Court. As he passed directly behind 24 Venus Court, he looked up at the second floor of the townhouse and saw Okemia and Cunningham through the window of the master bedroom.

The room ⁶⁵⁶ was illuminated by a television set. Okemia was naked and “hugging up” against Cunningham. Walls recounted that he walked around to the front of the townhouses, where he encountered Moore. She drove up and asked him what he was doing there.

He replied that he had come to see his wife. Moore said he should leave. She drove away. Walls walked up to 24 Venus Court, kicked in the door, grabbed a chefs knife he saw on the kitchen table, and went upstairs.

When he entered the master bedroom, Cunningham saw him and “came at him.” He and Cunningham “tussled” on the bed and he began “swinging the knife.” He did not know how many times he stabbed Cunningham. Okemia ran out of the room, and Walls ran after her. When he caught up with her outside, he grabbed her by the shoulder. She “got aggressive” and he “started swinging” the knife at her.

The knife eventually broke. He thought it might still be inside her. After Okemia fell to the ground, he called 911 on his cell phone. He walked back to Venus Court and knocked on the door to 30 Venus Court.

He told the neighbor that he had killed Okemia. During his statement, Walls was distraught. He said the whole incident resulted from Okemia’s “playing games with [his] emotions” and that he “couldn’t deal with it.” Several times he asked the police if Okemia was dead. On December 4, 2012, the police executed a search warrant at the home in Joppa where Walls had been living with his brother and sister-in-law.

On the kitchen counter, they found a butcher block containing knives with black handles. The largest knife was missing. They photographed the butcher block and seized one of the other knives. The photographs and the knife were introduced into evidence at trial, as was the knife handle found near Okemia’s body.

During a jail visit with his sister, Walls admitted that he had taken a knife with him to 24 Venus Court on the night in question. A recording of this conversation was played for the jury. Subsequently, in a recorded jail phone call, Walls told his daughter that he was carrying a knife in the early morning ⁶⁵⁷ hours of December 2, 2012, in case he encountered any “wild animals” while walking to 1 Venus Court. A recording of that call also was played for the jury.

The autopsy reports document that Okemia was stabbed eighteen times and sustained seven cutting injuries on her back, chest, arms, hips, hands, and face. A knife blade measuring eight and three-eighths inches was embedded in her back on the right side. Cunningham was stabbed ten times and sustained seven cutting injuries to his back, shoulder, abdomen, arms, and hands. In his case, Walls called eight witnesses.

His sister-in-law, Angela, testified that he had moved in with her and her husband in July of 2012, but had continued to see Okemia regularly. Two BCPD police officers testified that they had responded to the scene of the crimes on December 2, 2012, and had heard Walls admit to killing Okemia and Cunningham. The officer who transported Walls to the police station that night testified that Walls “began to cry and shake hysterically” while in the police car. Yet another BCPD police officer testified that he had observed blood stains on the door to 30 Venus Court.

A private investigator testified that he had confirmed that Okemia had registered at the Siesta Motel on November 29, 2012. We shall include additional facts in our discussion of the issues. DISCUSSION I. Opening Statement (a) In opening statement, the prosecutor gave the following description of Walls’s pursuit of Okemia after she ran out of 24 Venus Court: Okemia runs out of the apartment down the steps. This is 2:00 a.m. on December 2nd, early December of 2012.

She ⁶⁵⁸ runs down the steps and she makes it to approximately this area, you’ll hear testimony that’s about 30 Solar Circle. This is the area where she ends up in front of 30 Solar Circle. She’s running for her life. Ultimately, he catches her.

You’ll hear him testify that he just started swinging the knife. (Emphasis added.) Immediately after the prosecutor finished his opening, defense counsel asked to approach the bench and the following ensued: [DEFENSE COUNSEL]: Your Honor, I’m very concerned about one thing that [the prosecutor] said, and I know he didn’t do it intentionally. THE COURT: It was a misspeak. [DEFENSE COUNSEL]: It was a misspeak— THE COURT: I know it was. [DEFENSE COUNSEL]: —but it was a really serious misspeak. THE COURT: I know it was. [DEFENSE COUNSEL]: What he said was, ‘You will hear him testify,” in reference to [Walls].

I’m gonna have to ask for a mistrial based on that. That is a basic right [Walls] has not to testify. THE COURT: I know. It was an inadvertent choice of words. [DEFENSE COUNSEL]: I know you didn’t know— [PROSECUTOR]: I was referring to what he said in his statement.

THE COURT: You were referring to his statement, and instead of saying, [“]You will hear in the statement^”] you said, ‘You will hear him testify.” I’m denying the request for the mistrial. I would be happy to grant a curative instruction. They were told yesterday both in voir dire, and I think in my opening instructions no burden. [2] I understand your objection— ⁶⁵⁹ [DEFENSE COUNSEL]: I can’t say a curative instruction would come close to remedying it. If you give a curative instruction, you’re highlighting it, and then that would be disastrous.

THE COURT: I will not highlight it. What I will do if you’d like, and you can talk to [Walls] about this over lunch, I would before we start with testimony remind them of certain things and give a burden of proof instruction and no duty on Defense to put on any testimony in evidence and never any obligation for [Walls] to testify, and I would highlight those instructions at the beginning of the case, and then we’ll renew them at the end. So, if you would like me to do that, I’ll be happy to do that. If you choose to just leave it alone, I’ll leave it alone, but I don’t think a one-word misspeak in the middle of an opening gives rise to a basis for mistrial.

So, you want— [DEFENSE COUNSEL]: My request would be a mistrial. (Emphasis added.) Defense counsel then gave her opening statement. She did not mention the prosecutor’s misstatement or otherwise comment on whether Walls would testify. At the conclusion of her opening statement, the parties again approached the bench: [PROSECUTOR]: Your Honor, the State’s position is that a curative instruction will suffice if [Walls] plans to testify.

We are mindful of the Court’s time, we are loathed [sic] to waste the Court’s time in terms of the time we’ve spent during the trial up to this moment. If the Defense can’t say at this point in the proceedings whether or not [Walls is] going to testify— THE COURT: I mean, but the problem is and I believe it to have been just a misuse of a word— [PROSECUTOR]: Absolutely. ⁶⁶⁰ THE COURT: —as opposed to an intentional statement, and in context it’s a statement that lawyers in the courtroom react to and I think is not even noticed by others, but it certainly was one that when it was said, you know, it caught my attention. [PROSECUTOR]: Your Honor, it was accidental and unintentional, however— THE COURT: I mean, first of all, [Walls] doesn’t have to elect one way or the other at this point. [PROSECUTOR]: I understand, your Honor. THE COURT: Secondly — well, anyhow, let me see. Is the Defense asking for a curative instruction at this point or you’re just standing on your mistrial? [DEFENSE COUNSEL]: Your Honor, we want a mistri al— THE COURT: Yeah, but you’re not getting that.

We’re past that. [DEFENSE COUNSEL]: I understand. Our position, your Honor, is that there is no curative instruction that can remedy this. We’re caught in that same position as in jury instructions, you know, where counsel can decide whether they even want the jury to be told about the Defendant’s right to remain silent or not remain silent, because we understand that either way it could highlight the very issue that you’re trying not to highlight. So, our position is no, we do not believe that a curative instruction can remedy this.

We want the mistrial. We agree with the court, of course, that [Walls] is under no obligation at all at this stage to make an election as to whether he’s going to testify. THE COURT: Okay. [PROSECUTOR]: Then, your Honor, out of an abundance of caution the State would concede the mistrial. THE COURT: That makes no sense to me.

I mean, none. I don’t find a basis to grant a mistrial over the ⁶⁶¹ misuse of one word in an opening. I simply find no basis to grant a mistrial, period. Bring out the jurors.

(Emphasis added.) Walls elected not to testify. At the close of all the evidence, at Walls’s request, the court instructed the jurors that Walls “ha[d] an absolute constitutional right not to testify. The fact that [he] did not testify must not be held against [him] and must not be considered by you in any way or even discussed by you in your deliberations.” (b) Walls contends the trial court abused its discretion by denying his motion for mistrial. Quoting Simpson v. State, 442 Md. 446, 459 , 112 A.3d 941 (2015), he argues that the prosecutor’s remark in opening statement, that the jurors would hear him “testify that he just started swinging the knife,” was constitutionally impermissible because it was “reasonably susceptible of an adverse inference by members of the jury that [his] failure to testify would be indicative of [his] guilt.” Walls maintains that he had the right to decline a curative instruction, that such an instruction would have done more harm than good, and that the court’s general instructions to the jurors about his constitutional right not to testify did not ameliorate the prosecutor’s improper comment.

He further argues that the evidence on the principal contested issue at trial — whether the murders were premeditated — was not so overwhelming as to render any error by the court in denying the mistrial motion harmless beyond a reasonable doubt. The State responds that the prosecutor’s inadvertent “single remark” in opening statement did not mandate a mistrial. It maintains that Simpson is distinguishable for a number of reasons, including that, here, the court offered to give a prompt curative instruction and had “inoculated” the jurors before the inadvertent comment by instructing them that Walls had an absolute right not to testify. Also, unlike in Simpson , Walls’s criminal agency was not in dispute. ⁶⁶² In Simpson , the Court of Appeals addressed for the first time the standard by which to assess whether a prosecutor’s remark in opening statement violated the defendant’s Fifth Amendment right not to testify.

Simpson was charged with multiple counts of arson and other crimes arising from three incidents at the home of his ex-girlfriend’s family. In the first incident, the family’s garage was set on fire and burned down. In the second incident, the roof of the family’s house was set on fire. And in the third, one of the family’s cars was doused in gasoline and set on fire while it was parked in their driveway.

The third incident was captured on video and Simpson was arrested that same night. He gave an oral statement to the police, in which he admitted setting all three fires. He then handwrote a statement in which he again admitted to having set the fires. He said that he was “crazy” and “need[ed] help.” He wrote that the police should “[p]ut [him] in the chair for lethal injection,” and expressed shame about his actions.

During his oral statement, a police detective asked Simpson a series of questions and wrote down his responses. Simpson initialed and signed that statement. In opening statement, the prosecutor told the jurors several times what Simpson “will tell” them about the three fires. 3 442 Md. at 451 , 112 A.3d 941 . She said Simpson “will tell” them that he had “burned down that garage,” that he had “committed the acts of arson,” and “why he did it.” Id.

The prosecutor emphasized that even though the State had “[Simpson]’s own words” to convict him, it nevertheless would present additional evidence against him. The prosecutor concluded her opening statement by asking the jurors to “listen to what [Simpson] has said, to listen to how his words are corroborated [by other witness testimony,]” and to find him guilty. Id. ⁶⁶³ Defense counsel twice objected during the opening statement, but the objections were overruled. At the end of the prosecutor’s opening, defense counsel advised the court that he would be making a motion.

The court suggested that he wait until after he had given his own opening statement. In his opening statement, defense counsel responded directly to the prosecutor’s remarks: Based on [the prosecutor’s] suggestion that my client is going to state — to stand up in front of you and admit to all of the offenses, you’re saying, wait a minute, that doesn’t make sense, something doesn’t make sense here; if he’s guilty, why don’t, you know, you say he’s guilty and let us all go about our business. Well, there’s something that was not entirely clear from the State’s opening statement, because what she’s referring to is a so-called confession that my client gave. Let’s talk about this so-called confession which the State — and I believe they even used the word.

They acted like he’s going to come up here and testify in front of you, as if he did all of these things. My client, on May 16, 2010, signed a statement, and that’s what [the State] was referring to. The statement referred to the three incidents. If you look at this statement ... the problem is, first, that as to the ... the first two incidents — there’s no evidence, other than this statement, that my client had anything to do with those incidents....

The other problem is, if you look at the statement, it is so vague that it does not have the ring of truth. Simpson v. State, 214 Md.App. 336, 355-56 , 76 A.3d 458 (2013). Defense counsel went on to assert that Simpson’s statement to the police was a false confession. Upon concluding his opening statement, defense counsel moved for a mistrial based upon the prosecutor’s having said, ⁶⁶⁴ several times, that Simpson “will tell” the jurors about his involvement in the crimes.

He argued that those remarks were impermissible comments on Simpson’s decision whether to testify, in violation of his rights under the Fifth Amendment. The court denied the mistrial motion on the ground that, when the prosecutor was speaking, she had been holding Simpson’s written statement in her hand and merely was explaining what was in it. There was no request for a curative instruction. Simpson elected not to testify.

At defense counsel’s request, the court instructed the jurors at the close of all the evidence that Simpson had an “absolute Constitutional right not to testify” and that the “fact that [he] did not testify must not be held against [him] [and] must not be considered by [the jury] in any way.” In closing argument, defense counsel again addressed the prosecutor’s remarks in opening statement: “She said my client would testify. She said it at least three times. And I objected. But she was permitted to make that statement.

But the fact is, he didn’t testify.... He made a statement to the police. But that’s not testifying.” Simpson, 442 Md. at 458 , 112 A.3d 941 . The jurors convicted Simpson of one count of attempted second degree arson arising from the vehicle fire.

They were unable to reach a verdict on the remaining charges and the court declared a mistrial on those counts. On appeal, this Court affirmed. The Court of Appeals granted a petition for certiorari and reversed. As background, it explained that the Self-Incrimination Clause of the Fifth Amendment, which applies to the states, see Malloy v. Hogan, 378 U.S. 1, 3 , 84 S.Ct. 1489 , 12 L.Ed.2d 653 (1964), protects a defendant from being “compelled in any criminal case to be a witness against himself.” Article 22 of the Maryland Declaration of Rights offers the same protection using “nearly identical” language. 442 Md. at 455 , 112 A.3d 941 .

In Griffin v. California, 380 U.S. 609, 615 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965), the Supreme Court held that the Self- ⁶⁶⁵ Incrimination Clause prohibits a prosecutor from commenting in any respect upon a defendant’s silence and forbids the court from instructing the jurors that a defendant’s silence may be considered by them in any way in assessing the evidence. The Court of Appeals examined two Maryland cases, both captioned Smith v. State, that address whether a prosecutor’s remarks in closing argument impermissibly infringed upon a defendant’s right not to testify. In Smith v. State, 169 Md. 474 , 182 A. 287 (1936) (“Smith I”), which predated Malloy and therefore was decided under Article 22, the defendant was on trial for the (since abrogated) crime of bastardy. In his closing argument, the prosecutor pointed out that the mother had testified that Smith was the child’s father, but Smith had “sat here all during the trial and ha[d] not denied his fatherhood.” Id. at 476, 182 A. 287 .

The Court held that the comment violated Article 22 because “it was susceptible of the inference by the jury that they were to consider the silence of the traverser in the face of the accusation of the prosecuting witness as an indication of his guilt.” Id. The Court concluded that there was no prejudice, however, because the defendant had promptly objected and the court had given a curative instruction to the effect that the defendant had a right not to testify and that the jury was not permitted to draw an adverse inference from his decision not to testify. 4 In Smith v. State, 367 Md. 348 , 787 A.2d 152 (2001) (“Smith II ”), the defendant was tried on charges of burglary, conspiracy to obstruct justice, malicious destruction of property, and theft. In his closing argument, the prosecutor told the jurors they could infer from the fact that the defendant was in possession of the stolen property that he was the thief, and further infer that he was the burglar. He then said, “In making that conclusion, ask yourself this, “What explanation ⁶⁶⁶ has been given to us by the defendant for having the [stolen] goods?

Zero, none.” Id. at 352 , 787 A.2d 152 (emphasis in original). Defense counsel objected, but the court overruled his objection, concluding that the prosecutor’s statement was a permissible comment on the evidence. There was no mistrial motion. The case reached the Court of Appeals, which reversed.

Applying the “susceptible of adverse inference” test from Smith I, it held that the prosecutor’s remarks in closing were “directed at the defendant’s constitutional right to remain silent, not the defense’s failure to put on evidence.” Simpson, 442 Md. at 458 , 112 A.3d 941 . The Court further held that the court’s error in allowing the argument was not harmless because the State could not show beyond a reasonable doubt that the improper argument did not contribute to the guilty verdict. The Simpson Court adopted the Smith I and Smith II test to determine whether the prosecutor’s challenged remarks in opening statement had “impinged upon Simpson’s right to protection from adverse comment on his constitutional right not to testify.” Id. at 459, 112 A.3d 941 . In the context of an opening statement, the test is “whether the prosecutor’s remarks ... were reasonably susceptible of an adverse inference by members of the jury that the defendant’s failure to testify would be indicative of the defendant’s guilt?” Id.

The Court held that the prosecutor’s repeated assertions that Simpson “will tell you” about his involvement in the arsons were “reasonably susceptible of the inference by the jury that [Simpson] had an obligation to testify and, if he did not, the jury should view that as evidence of his guilt.” Id. at 461 , 112 A.3d 941 . The Court rejected the argument that the prosecutor merely was explaining what Simpson had said in his written statement because, even if he was holding that document while giving opening statement, the jury had no way to know the document he was holding was Simpson’s statement. The Court turned to the question whether the court’s error in denying the mistrial motion was harmless. The State ⁶⁶⁷ argued that the error had been cured by the response leveled by defense counsel in his opening statement and closing argument, coupled with the court’s instructions to the jury, all of which made clear that the defendant had a right not to testify and the jury could not draw an adverse inference from his not testifying.

Alternatively, the State argued that the prosecutor’s remarks were likely to be viewed by the jury as an unfulfilled promise by the State, to its detriment, not Simpson’s; and the evidence of Simpson’s guilt was so overwhelming as to render the error harmless beyond a reasonable doubt. The Court disagreed, reasoning that defense counsel’s “reasonable effort to blunt the force of the unconstitutional blow inflicted during the prosecutor’s opening statement” and the court’s instructions, “given three days later and in the midst of what amounted to seventeen transcript pages of jury instructions,” did not cure the violation. Id. at 463 , 112 A.3d 941 . It found unpersuasive the argument that the improper remarks would prejudice the State, not Simpson.

It rejected the State’s assertion that the evidence of Simpson’s guilt was overwhelming, pointing out that the jurors had been unable to reach a verdict on eight of the nine charges before them, which suggested they had placed little weight on Simpson’s statement. Moreover, the cross-examination of members of the family was “vigorous” and, in the Court’s view, effective. In light of the weaknesses in the State’s case, the Court was not convinced beyond a reasonable doubt “that the jury’s verdict [on attempted second degree arson] was ‘in no way influenced’ ... by the prosecutor’s adverse comment on [Simpson’s] failure to testify.” Id. (quoting Dorsey, 276 Md. at 658-59, 350 A.2d 665 ).

We return to the case at bar. As the State concedes, under the test announced in Simpson, the prosecutor’s comment in opening statement — that the jury would “hear [Walls] testify that he just started swinging the knife” — was susceptible of an adverse inference that Walls had an obligation to testify and, if he did not testify, that would indicate guilt on his part. Unlike in Simpson, however, here the trial judge recognized ⁶⁶⁸ that the prosecutor’s statement was improper and proposed giving a curative instruction, which she spelled out. 5 Walls’s counsel declined to have the court give that instruction. It was in this context that Walls’s motion for a mistrial was denied.

Walls urges that this was an abuse of discretion and reversible error. The State counters that any error was harmless beyond a reasonable doubt. It is a basic precept that our function as an appellate court is to review the rulings of the trial court for error. Cason v. State, 140 Md.App. 379, 400 , 780 A.2d 466 (2001) (appellate court function is to “review decisions, rulings, and actions of the [trial] court”).

Our function is not to review conduct of counsel, the parties, or witnesses for error. We focus on the rulings of the court, some of which may be made in response to conduct of the lawyers, parties, or witnesses. DeLuca v. State, 78 Md.App. 395, 397-98 , 553 A.2d 730 (1989) (“Only the judge can commit error” and counsel’s, parties’, or witnesses’ “ ‘conduct can do no more than serve as the predicate for possible judicial error.’ ”) (quoting Ball v. State, 57 Md.App. 338, 359 , 470 A.2d 361 (1984)). So, contrary to the phrasing used by both parties on appeal, the threshold question is not whether the prosecutor “erred” by telling the jurors, in opening, that they would hear Walls testify about swinging the knife.

Rather, it is whether the trial court erred in denying the mistrial motion that was based on the prosecutor’s comment. A mistrial is an extreme remedy and it is well established that the decision whether to grant it is within the sound discretion of the trial court. Carter v. State, 366 Md. 574, 589 , 785 A.2d 348 (2001). When inadmissible evidence or improper information has come before the jury, the trial judge “must assess [its] prejudicial impact ... and assess whether the prejudice can be cured.” Id.

If the prejudice cannot be cured, “a mistrial must be granted.” Id. When a trial judge ⁶⁶⁹ decides that the prejudice can be remedied by a curative instruction, and denies the mistrial motion and gives such an instruction, appellate review focuses on whether “the damage in the form of prejudice to the defendant transcended the curative effect of the instruction.” Kosmas v. State, 316 Md. 587, 594 , 560 A.2d 1137 (1989). In the case at bar, the court offered to give a curative instruction, but did not give it when counsel for Walls refused to agree to it. In deciding whether the trial judge abused her discretion in denying the mistrial motion, we first must assess whether the potential prejudice to Walls from the improper prosecutorial comment could have been cured by the proposed curative instruction.

If the answer to that question is “yes,” then we must determine the impact, if any, of Walls’s decision to decline the court’s proposed curative instruction. There was no dispute here that the prosecutor misspoke when he used the word “testify.” This one-word slipup, inadvertently made, is unlike the intentional comments in Smith I, Smith II, and Simpson. In Smith I and Smith II, the prosecutors’ closing arguments openly invited the jurors to draw an inference against the defendant from his silence or his choice not to put on evidence. In that context, the prejudice to the defendant was great.

Likewise, in Simpson, the prosecutor repeatedly informed the jurors in opening statement that the defendant would “tell” them that he had committed the acts of arson, creating the strong impression that the defendant would testify and that his testimony would run counter to his defense of lack of criminal agency. The nature and number of these comments made them seriously prejudicial. In this case, the trial judge found that the prosecutor’s one-word “misspeak” (made in the course of an opening statement covering four transcript pages), although glaring to the court and counsel as people schooled in the law, probably did not even register to the jurors. This finding is entitled to deference.

See Simmons v. State, 436 Md. 202, 212 , 81 A.3d 383 (2013) (“ ‘In the environment of the trial the trial court is ⁶⁷⁰ peculiarly in a superior position to judge the effect of any ... alleged improper remark[ ].’ ”) (quoting Wilhelm v. State, 272 Md. 404, 429 , 326 A.2d 707 (1974)); State v. Hawkins, 326 Md. 270, 278 , 604 A.2d 489 (1992) (“The judge is able ... to note the reaction of the jurors and counsel to inadmissible matters. That is to say, the judge has his [or her] finger on the pulse of the trial”). Thus, the comment in question was susceptible of an adverse inference of guilt if Walls did not testify, but barely so, and therefore was minimally prejudicial As proposed by the trial judge, the curative instruction would have been given at the outset of the evidentiary phase of the trial (right after opening statements), and would have communicated to the jurors that the defense had no burden of proof, no duty to present any evidence, and that Walls had an absolute constitutional right not to testify. The court already had given these exact instructions to the venire panel at the beginning of voir dire, so the curative instruction would have appeared to the selected jurors to serve as a reminder.

Contrary to the main concern expressed by counsel for Walls, the proposed curative instruction would not have “highlighted” the prosecutor’s improper remark. It would not have mentioned the remark and would not even have seemed to have been prompted by anything said in opening statements. The curative instruction would have been timely, unlike in Simpson, accurate, and, in our view, effective to counteract the minimally damaging impact of the prosecutor’s improper remark. See Carter, 366 Md. at 589 , 785 A.2d 348 (“If a curative instruction is given, the instruction must be timely, accurate, and effective.”).

Having concluded that the court’s proposed instruction would have been appropriately curative, we turn to address the impact, if any, of Walls’s refusal to allow the court to give the curative instruction. Citing Hardaway v. State, 317 Md. 160 , 562 A.2d 1234 (1989), Walls argues that he was entitled to decline the court’s proposed curative instruction because it was an instruction advising the jury of his Fifth Amendment right not to testify, ⁶⁷¹ and therefore the only proper course of action for the court to have taken was to grant the mistrial motion. The State maintains that by declining the curative instruction, Walls waived his right to challenge on appeal the court’s decision to deny his mistrial motion. Hardaway was a follow-up to the Supreme Court’s decision in Lakeside v. Oregon, 435 U.S. 333 , 98 S.Ct. 1091 , 55 L.Ed.2d 319 (1978).

In Lakeside , the defendant challenged on Fifth Amendment grounds a state trial judge’s decision to give a “no adverse inference” instruction, as one of the general instructions given at the close of all the evidence, over the defendant’s objection. The Court held that the trial court did not violate the defendant’s Fifth Amendment right against self-incrimination by giving the “no adverse inference” instruction over the defendant’s objection. It commented, however, that “[i]t may be wise for a trial judge not to give such a cautionary instruction over a defendant’s objection. And each State is, of course, free to forbid its trial judges from doing so as a matter of state law.” Id. at 340 , 98 S.Ct. 1091 .

In Hardaway , defense counsel asked the court not to give a “no adverse inference” instruction at the close of the evidence. The trial judge gave the instruction anyway. The case reached the Court of Appeals, which held, as a matter of Maryland common law, that, “absent special circumstances,” it is error for a trial court to include in its jury instructions at the close of the evidence an adverse inference instruction except when the defendant has asked that the instruction be given. Id. at 161 , 562 A.2d 1234 . 6 Observing that the purpose of the “no adverse inference” instruction is “to protect the defendant in the exercise of his constitutional privilege against self-incrimination,” the court held that “the entitlement to have the jury instruction that no adverse inference should be drawn from the defendant’s silence is itself a constitutional ⁶⁷² right belonging to the defendant.” Id. at 166 , 562 A.2d 1234 .

The Court noted that some defendants prefer that the no adverse inference instruction not be given because it is “ ‘more harmful than helpful,” in that it “may inadvertently cause the jurors to consider certain adverse inferences which would not otherwise have entered their minds.’ ” Id. at 165 , 562 A.2d 1234 (quoting State v. Kimball, 176 N.W.2d 864, 869 (Iowa 1970)). The Court reasoned that because the purpose of the instruction is to protect the defendant, “it should, like other rights, be waivable by the defendant.” Id. at 166-67, 562 A.2d 1234 . [Sjince the instruction is a right of the defendant, for his benefit, but because the beneficial effect of the