Washington v. State

HOLLANDER, Judge. Following a trial held in June of 2006, a jury in the Circuit Court for Baltimore City convicted Brandon Washington, ap ⁴⁶¹ pellant, of possession of a firearm by a prohibited person and wearing and carrying a handgun. See Md.Code (2003), § 5-101(g) and § 5-133 of the Public Safety Article (“P.S.”) (possession of a firearm by a prohibited person); Md.Code (2002), § 4-203 of the Criminal Law Article (“C.L.”) (wearing and carrying a handgun). 1 The court subsequently sentenced appellant to a mandatory term of five years for the offense of firearm possession by a prohibited person, and to a concurrent three-year term for the wearing and carrying offense. Appellant presents four questions, which we quote: 1.

Did the trial court err in interrupting appellant’s closing argument and precluding defense counsel from arguing a competing interpretation of the evidence to the jury because the judge “agreed with the State’s interpretation” of one item of evidence? 2. Did the trial judge impermissibly usurp the jury’s role as sole and exclusive triers of fact when she instructed the jury that they may not consider defense counsel’s proffered interpretation of the evidence in any manner? 3. Whether the trial court committed plain error in allowing the State to cross-examine appellant through a series of “were they lying” questions[.] 4. Whether the trial court impermissibly limited the appellant’s right to cross-examine his accusers!?] We conclude that the trial court abused its discretion by precluding appellant’s closing argument.

Therefore, we shall vacate the judgments of conviction and remand for further proceedings. Factual And Procedural Summary 2 Between 10:30 p.m., and 11:30 p.m. on November 12, 2005, Officer Earl Thompson and Detective Fabien Laronde of the ⁴⁶² Baltimore City Police Department “FLEX Squad” received a call from a known, confidential source informing them of a suspect in the 400 Block of Lyndhurst 3 Avenue in Baltimore City who was possibly armed with a handgun. In particular, Laronde testified that the officers “received a call for discharging in the area.” Accordingly, Thompson and Laronde, accompanied by Officer Lash, drove to Lyndhurst Avenue, where they saw a suspect whom they later identified as appellant. At the time, the officers were in plainclothes and in an unmarked vehicle.

Nevertheless, appellant spotted them as they drove into the area. According to Officer Thompson, appellant “looked at [their] vehicle,” started to walk away, and then began to run as they came near. Thompson explained that while the officers chased appellant in their car, appellant “made a gesture with his right arm as though he was throwing a metal object up into the air onto a roof in the block.” Thompson also recalled that appellant traveled about 30 feet before the officers caught up with him. Laronde exited the car and apprehended appellant.

With the aid of “Foxtrot,” a police helicopter with a searchlight, the police located the suspicious object on the roof of a porch of an abandoned house. Laronde entered the building and retrieved the item— a fully loaded handgun. Appellant was arrested and, in a search of his person incident to that arrest, the police recovered a ziplock bag containing cocaine. The police submitted the handgun for ballistics and fingerprint testing, and the State introduced the test results into evidence.

In particular, State’s Exhibit 1A is a “Firearms ⁴⁶³ Identification Unit-Firearms Report,” which contains a physical description of the firearm, including its make, model, serial number. The report also notes that the weapon was “test fired,” found “operable,” and meets the definition of a handgun. State’s Exhibit IB is the report from the police “Laboratory Section,” titled “Request for Firearms Examination.” The form contains appellant’s name, as well as the make and model of the weapon and the date of processing for latent prints (11/29/05). Moreover, it indicates that the “Results” of the latent fingerprint test were “Negative.” Officer Thompson was examined about both reports.

The following exchange is relevant: [PROSECUTOR:] Directing your attention back to the firearms report [i.e., Exhibit 1A]. What, if any other information is contained on that report below the comments section? [THOMPSON:] The last checkmark states, this weapon meets the definition of a handgun as described in Annotated Code of Maryland, Criminal Law 4-201 and is operable and was test fired. [PROSECUTOR:] Is that the handgun that you recovered on November 12th, 2005? [THOMPSON:] Yes. [PROSECUTOR:] Did you recover it? [THOMPSON:] No, Officer Laronde recovered it off the roof. [PROSECUTOR:] Did he wear gloves when he recovered it, if you know? [THOMPSON:] No. [PROSECUTOR:] When he — were you wearing gloves? [THOMPSON:] No. [PROSECUTOR:] Why not? [THOMPSON:] I didn’t put my [sic] on that day. I didn’t put any gloves on that day. ⁴⁶⁴ [PROSECUTOR:] State’s Exhibit IB. Do you recognize that document? [THOMPSON:] Yes. [PROSECUTOR:] What is it? [THOMPSON:] It’s a laboratory section request for firearms examination for latent prints. [PROSECUTOR:] And is there any information with respect to latent prints?

First of all, what are latent prints? [THOMPSON:] Latent prints is [sic] fingerprints that are leftover [sic] once a handgun is held. [PROSECUTOR:] And is there any information contained on that piece of paper with respect to latent prints? [THOMPSON:] Yes. [PROSECUTOR:] What, if any information is on there? [THOMPSON:] By the technician that examined the weapon [it] came back for negative prints. [PROSECUTOR:] What does that mean? [THOMPSON:] No prints could be lifted off the weapon. * % * [PROSECUTOR:] Did you handle that firearm? [THOMPSON:] Yes. [PROSECUTOR:] Were you wearing gloves? [THOMPSON:] No. (Emphasis added.) The State did not call an expert witness to explain the process of gathering latent fingerprint evidence or the specifics of how fingerprint testing is conducted. Nor did the State produce expert evidence to explain that certain surfaces, such as the handgun in issue, may not yield fingerprints. The results of the fingerprint testing became an issue during closing argument. The prosecutor’s summation included the following comment with regard to the test results: The next form you have is State’s Exhibit IB and the important thing about IB is this is basically the second page of the firearms report and down at the bottom it says ⁴⁶⁵ “processed for latent prints,” and then it says who it was processed by and it also says the results of the latent prints test were negative.

Well, what does that mean? That means it was negative. (Inaudible) Well, you would say the next question is, “Well, how could that be?” We heard Officer Laronde testify that he picked up that handgun with his bare hands. We heard Officer Thompson say he picked up that handgun with his bare hands.

So, if they picked it up, why wouldn’t their prints be on it. Well, the reason that their prints weren’t on it is that the surface of the handgun is such that there can’t be prints that are obtained from it, because they were incapable of getting prints off of this handgun, because, surely, if they would have gotten any prints, they would have gotten the prints of the two officers who admitted holding that handgun. (Emphasis added.) In her closing argument, the defense attorney stated, in part: Now, ladies and gentlemen, we have a gun. We don’t have a problem (inaudible).

However — and we also stipulated (inaudible), which you’ll receive (inaudible), that the gun was submitted. The State would have you believe that when the gun was submitted, the prints came back negative. Well, they did come back negative. They came back negative for the officers.

Why? Because they weren’t looking for the officers’ prints. They were looking for Mr. Washington’s prints. (Emphasis added.) The prosecutor objected, and the trial court sustained the objection.

The prosecutor then asked the court to tell “the jury ... to disregard that[,]” and a sidebar was convened. The following ensued: THE COURT: (Inaudible.) [PROSECUTOR:] Yes, that it just came back as negative as to any prints, meaning there were no prints even recovered from the handgun. There was nothing. So it’s not even as if there were prints that they could have even analyzed to compare to the police officers’.

There was nothing. ⁴⁶⁶ [DEFENSE COUNSEL]: Well, Your Honor, the report says that it was negative. We haven’t had anyone come in and testify to the contrary. THE COURT: Does the report say that they couldn’t get a latent print? [DEFENSE COUNSEL]: It says “latente.” That’s what it says, Your Honor, and then it says — down at the bottom, it says “negative.” [PROSECUTOR]: Meaning that there were no prints. [DEFENSE COUNSEL]: It says up top who they were searching for; the defendant’s full name, Brandon Washington. THE COURT: The defendant’s full name identifies the case.. [PROSECUTOR]: Right.

When they open up the gun, they have to— THE COURT: (Inaudible.) [PROSECUTOR]: Right. THE COURT: I don’t think a fair interpretation (inaudible) that even if there were latents, none of them matched Brandon Washington. Your argument to the jury is that there were latent prints and none of them matched against Brandon Washington. That’s not a fair interpretation of this report.

So the objection is sustained because that is not a fair interpretation of this report. [DEFENSE COUNSEL]: Well, Your Honor, there’s nothing that indicates that it wasn’t done either, that it wouldn’t have been Brandon Washington. They wouldn’t have looked for the officer’s prints. They’re looking for Brandon Washington’s prints on the gun, on the handgun. THE COURT: (Inaudible) processed for latent prints and the results are negative, that is, if they didn’t have any prints to even put in to compare.

(Inaudible.) They didn’t even compare them to the general public. So the objection is sustained. ⁴⁶⁷ [PROSECUTOR]: And I’m asking that you instruct the jury to disregard the last statement that was made to them. THE COURT: This is a motion to strike— [PROSECUTOR]: Yes. THE COURT: — the statement concerning the fingerprint comparison? [PROSECUTOR]: Yes. [DEFENSE COUNSEL]: Then, Your Honor, I would still make the same, just for the record, the same objection.

Or not objection, but— THE COURT: The report is in evidence. If an appellate authority has to review it, they’ll see that it says there’s a negative result for latent prints. I believe that’s what the report says. (Inaudible.) (Emphasis added.) As noted, the jury convicted appellant of two handgun offenses.

Appellant filed a Motion for a New Trial, arguing that the court had impermissibly limited his closing argument. At the motion hearing, defense counsel maintained that her argument was in response to the State’s argument, explaining: And the State also hit on the point where it says there was nothing to indicate that there was a comparison to any of the prints. However, the State used that in his closing argument saying if the officer’s prints had come up then there would have been something to indicate that. And that’s exactly what ... we’re arguing in this particular instance, Your Honor, that we don’t know if there was the officer’s — that the officer’s prints were tested for because the document requested examination for Brandon Washington’s prints.

So we don’t know if a comparison — or if the officer’s prints would have come up or if they did come up because we didn’t have the Examiner Turner to come and sit in this seat to indicate that. We argued the four comers of the document, Your Honor. (Emphasis added.) In denying the motion, the court stated: ⁴⁶⁸ As to latent prints, the report states, “processed for latent prints November 29th, 2005 by T. Turner. Result-negative.[”] Based on this single notation the Defense sought to argue in closing argument that there were fingerprints recovered from the gun, that fingerprints on the gun came back negative after examination for Mr. Washington’s fingerprint and that the request for examination of the fingerprints was exclusively for Mr. Washington.

In opposition the State argued that the report simply stated that the gun had been processed for latent fingerprints with negative results, meaning that the gun had no latent fingerprints recovered from it. The State argued that State’s Exhibit IB failed to demonstrate any examination or fingerprints had been conducted and simply meant that the gun had been negative for latent fingerprints. The court agreed with the State’s interpretation and held that the evidence did not warrant the argument attempted by the Defense attorney. The court affirms that holding today and hereby denies the motion for new trial.

The court finds again that the evidence, State’s Exhibit IB simply does not warrant the argument attempted by the Defense in this case, that fingerprints from Mr. Washington were compared to fingerprints recovered from the gun and found to be negative and that there was a sole comparison of fingerprints from the gun to known fingerprints of Mr. Washington. The evidence simply does not warrant this argument. The plain reading of State’s Exhibit IB is that the gun was processed for latent prints with negative results meaning no latent prints were found on the gun. (Emphasis added.) Discussion I. In a series of related contentions, appellant claims that the trial court abridged his constitutional right to present “fair and reasonable closing argument to the jury” by preventing defense counsel from arguing that the test for fingerprints on ⁴⁶⁹ the firearm was “negative” for appellant’s fingerprints.

He maintains that counsel’s argument was a proper interpretation of the record; that it was “invited” by the prosecutor’s erroneous characterization of the evidence (by which the prosecutor argued that firearms seldom yield fingerprints); and that the trial judge overstepped her bounds by resolving the competing factual inferences in favor of the State. According to appellant, “the jury was deprived [of] the ability to assess appellant’s guilt based on all the facts available, as key and relevant information was excluded from the jury’s plenary consideration, ensuring only the State’s version of events was put before the jury.” He asserts: Reversible error occurred when the trial judge sustained the State’s objection during closing argument, interrupted defense counsel, disallowed the defense from submitting their competing, reasonable interpretation of one of the State’s exhibits to the jury, and instructed the jury to disregard the defense argument. In so doing, the trial court deprived appellant of his right to unfettered, uninhibited, and robust argument before the jury, precluded appellant from fairly and directly responding to the State’s interpretation of that item of evidence, and impermissibly denied the jury their exclusive ability to weigh and assess the evidence, and derive whatever inferences they deign reasonable. In addition, appellant maintains that the “defense has the right to alert [the] jury to failings” in the State’s case “by identifying holes in the State’s evidentiary edifice.” He insists that it was “patently inappropriate” for the court to preclude the defense “from submitting their interpretation of the evidence because the Court ‘agree[s] with the State’s interpretation’ of that evidence.... ” Appellant continues: “It cannot be questioned that the defense was engaged in proper arguments when it sought to argue to the jury that the absence of a positive fingerprint match on the handgun-the ‘negative’ result of the fingerprint analysis — militated in favor of acquit ⁴⁷⁰ tal.

Therefore, the trial court erred in failing to permit the defense to submit the argument to the jury.” In appellant’s view, the court took dead aim at the defense’s interpretation of the negative latent fingerprint results in evidence-that the gun was tested for appellant’s fingerprints, and the test came back “negative”-and over defense objection told the jury to disregard the argument and not consider it for any purpose. (Tl. 121; App. 7) Thus, the trial judge impermissibly identified one inference to be derived from the facts, and excluded it from the jury’s consideration. The judge therefore intruded upon, and denied the jury, their role to be the exclusive arbiter of the inferences derived from the evidence. This violated Article 23 of the Declaration of Rights, and compels reversal.

Further, appellant asserts: A trial judge may not grant the State a monopoly in the marketplace of ideas. Experience has long taught that the truth may often lie between the two competing versions thereof offered by parties to litigation. It is the role of the jury, as neutral lay fact-finders, to assess the competing interpretations offered by the party and deign the truth. The State responds that the trial judge correctly determined that “defense counsel had no basis for arguing that the evidence showed that fingerprints taken from the gun did not match Washington’s prints,” because “[n]o evidence existed to indicate that any fingerprints were taken off the gun.” In its view, the trial court “properly exercised its discretion to bar defense counsel from arguing about ‘facts not in evidence.’ ” Similarly, argues the State, the court’s subsequent instruction to the jury to disregard the statement by defense counsel regarding fingerprints was an appropriate exercise of discretion.

Further, the State disputes appellant’s contention that the defense argument was an “ ‘invited response’ to the prosecutor’s allegedly impermissible argument regarding the absence of fingerprint evidence.” It points out that appellant failed to ⁴⁷¹ object to the prosecutor’s explanation that “the absence of fingerprints on the gun was due to the nature of the surface of the gun.” II. The right to counsel entails the opportunity to present closing argument. See Holmes v. State, 333 Md. 652, 658-59 , 637 A.2d 113 , (1994) (“ ‘It is well settled that a criminal defendant’s Sixth Amendment right to counsel guarantees, in part, an opportunity of counsel to present closing argument at the close of the evidence.’ ”) (citation omitted); see also Cherry v. State, 305 Md. 631, 636 , 506 A.2d 228 (1986); Biglari v. State, 156 Md.App. 657, 673 , 847 A.2d 1239 , cert. denied, 382 Md. 686 , 856 A.2d 723 (2004). In Yopps v. State, 228 Md. 204, 207 , 178 A.2d 879 (1962), the Court explained: The Constitutional right of a defendant to be heard through counsel necessarily includes his right to have his counsel make a proper argument on the evidence and the applicable law in his favor, however simple, clear, unimpeached, and conclusive the evidence may seem, unless he has waived his right to such argument, or unless the argument is not within the issues in the case, and the trial court has no discretion to deny accused such right.

To be sure, “attorneys are afforded great leeway in presenting closing arguments to the jury.” Degren v. State, 352 Md. 400, 429 , 722 A.2d 887 (1999). See Smith v. State, 388 Md. 468 , 880 A.2d 288 (2005); Trimble v. State, 300 Md. 387, 405 , 478 A.2d 1143 (1984), cert. denied, 469 U.S. 1230 , 105 S.Ct. 1231 , 84 L.Ed.2d 368 (1985). In Herring v. New York, 422 U.S. 853, 862 , 95 S.Ct. 2550 , 45 L.Ed.2d 593 (1975), the Supreme Court addressed the importance of closing argument: It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. ⁴⁷² Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries’ positions.

And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant’s guilt. See In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 [1970]. The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of the case will best promote the ultimate objective that the guilty be convicted and the innocent go free. The Court of Appeals outlined the contours of permissible summation in the seminal case of Wilhelm v. State, 272 Md. 404, 412-13 , 326 A.2d 707 (1974) (citations omitted): As to summation, it 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. Moreover, if counsel does not make any statement of fact not fairly deducible from the evidence his argument is not improper, although the inferences discussed are illogical and erroneous. 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____ While arguments of counsel are required to be confined to the issues in the cases on trial, the evidence and fair and reasonable deductions therefrom, and to arguments of opposing counsel, generally speaking, liberal freedom of speech should be allowed. There are no hard-and-fast ⁴⁷³ limitations within which the argument of earnest counsel must be confined-no well-defined bounds beyond which the eloquence of an advocate shall not soar.

He may discuss the facts proved or admitted in the pleadings, assess the conduct of the parties, and attack the credibility of witnesses. He may indulge in oratorical conceit or flourish and in illustrations and metaphorical allusions. Nevertheless, there are limitations as to proper argument. The Court said, id. at 413 , 326 A.2d 707 : As a limitation upon the general scope of permissible closing argument this Court in Esterline v. State, 105 Md. 629 , 66 A. 269 (1907), cautioned that counsel should not be permitted by the court, over proper objection, to state and comment upon facts not in evidence or to state what he could have proven.

Persistence in such course of conduct may furnish good grounds for a new trial. The conduct of the trial must of necessity rest largely in the control and discretion of the presiding judge and an appellate court should in no case interfere with that judgment unless there has been an abuse of discretion by the trial judge of a character likely to have injured the complaining party. As we have seen, appellant maintains that his counsel’s proposed summation with respect to the negative fingerprint results constituted a plausible interpretation of the report. The theory of the defense was that the latent fingerprint test was conducted to confirm or rule out the presence of appellant’s latent fingerprints, with “negative” test results for appellant’s prints.

In appellant’s view, it was not the role of the court to interpret the report and conclude that it meant that no latent fingerprints whatsoever were recovered. Conversely, the State contends that the proposed argument was improper because there was no evidence of the recovery of any fingerprints from the weapon. It trumpets the testimony of Officer Thompson, who stated that “[n]o prints could be lifted off the weapon.” Then, in its closing argument, the State suggested that no prints could be recovered from the gun because of the nature of the surface of the weapon. Thus, ⁴⁷⁴ the State insists that the trial court properly determined that the test results set forth in the report necessarily meant that the weapon was completely negative for all prints; the test results were not limited to the presence or absence of appellant’s fingerprints.

Claiming that the defense’s closing argument was at odds with the evidence, the State contends that the court properly limited defense counsel’s summation. In our view, there was no factual basis for the trial judge to declare, one way or the other, what the text of the report definitively meant, or to determine that the test yielded results that were negative for both appellant as well as the officers who also handled the firearm. We explain. As indicated, the report contained only appellant’s name, and stated that the test results for latent fingerprints were “negative,” without further explanation.

Notably, the State never called the examiner to establish the exact meaning of the words used in the report. In our view, the report was ambiguous; it gave rise to conflicting inferences. By stating that the test for latent prints was “negative,” the report could have meant that no prints at all were recovered, or it could have meant that the weapon was analyzed for appellant’s prints, with negative results as to him. Moreover, Officer Thompson’s testimony that “[n]o prints could be lifted off the weapon” was not clear.

He could have meant that no prints could be lifted from the weapon, perhaps because of the nature of the surface of the gun. Yet, if the weapon could not yield fingerprints, as the State claims, the jury surely was left to wonder why the gun was even processed. Thompson also could have meant that no prints could be lifted because, for some unspecified reason, there were none to lift. Or, Thompson could have meant that the examiner looked for appellant’s prints, but there were none, and thus none could be lifted.

Nor did Thompson’s testimony resolve the ambiguity in the text of the report; he did not answer the basic question whether the fingerprint analysis failed to detect appellant’s prints only or, instead, prints from all sources. In addition, ⁴⁷⁵ Thompson was not offered as an expert, and did not explain, as the State argued in closing, that the gun surface was the kind that is not susceptible to fingerprint examination. Significantly, the State does not cite any authority for the proposition that lay jurors would be in a position to determine whether latent prints were recoverable from the surface of the gun in issue. Indeed, several cases suggest that expert evidence is necessary to make the point that the State advanced.

For example, in Wise v. State, 132 Md.App. 127, 136 , 751 A.2d 24 , cert. denied, 360 Md. 276 , 757 A.2d 811 (2000), the prosecution offered the testimony of an expert witness who “testified at length about fingerprinting and the difficulties of obtaining fingerprints from gel capsules and vials.” In United States v. Burdeau, 168 F.3d 352, 357 (9th Cir.), cert. denied, 528 U.S. 958 , 120 S.Ct. 388 , 145 L.Ed.2d 303 (1999), the government, over objection, “elicited testimony that identifiable fingerprints are almost never found on guns and only rarely found on other objects submitted for testing.” In response to Burdeau’s challenge to this testimony on direct appeal from his convictions for robbery and use of a handgun in the commission of a felony, the Ninth Circuit stated that it has “in the past upheld the admission of expert testimony that explained the possible reasons why fingerprints would not be found on an object.” Id. at 357 (citing United States v. Christophe, 833 F.2d 1296, 1300 (9th Cir.1987) and United States v. Feldman, 788 F.2d 544, 554-55 (9th Cir.1986)). See also United States v. Carpenter, 403 F.3d 9 , 10 n. 1 (1st Cir.) (noting that to meet defense argument about lack of fingerprints, “the government adduced expert testimony to the effect that it is exceedingly difficult to lift viable fingerprints from the surfaces of this particular weapon.”), cert. denied, 544 U.S. 1042 , 125 S.Ct. 2284 , 161 L.Ed.2d 1076 (2005). Therefore, we agree with appellant that the court made “an impermissible decision of what was, and was not the ... inference to be drawn from the evidence presented.” As appellant posits, “The trial judge is not the arbiter of which arguments are, and are not, logical, correct, or the more ⁴⁷⁶ available. It is not the role of the trial judge to assess which of two competing interpretations of a piece of evidence is the better one, and deny the defense the opportunity to submit their interpretation of the evidence.... ” If the “negative” result of the fingerprint test was ambiguous, the question remains as to whether defense counsel should have been allowed to argue that the fingerprint analysis yielded “negative” results for appellant’s prints.

Given the failure of the prosecution to introduce foundational evidence that the test was negative in all respects, and its failure to adduce expert testimony to establish that no latent fingerprints could be recovered because of the nature of the gun’s surface, the defense’s theory as to the meaning of the report was just as plausible as the State’s, and defense counsel should have been permitted to so argue. Several cases shed light on the question of whether appellant’s argument should have been permitted. We begin with Eley v. State, 288 Md. 548 , 419 A.2d 384 (1980). In Eley , the