*1 ELEY v. STATE OF MARYLAND JONATHAN WAYNE Term, 109, September 1979.] [No. September 1980. Decided J., argued before cause Murphy, Smith, C. JJ. Cole, Rodowsky, Digges, Eldridge, Davidson Saunders, Defender, Thomas Assistant J. Public with Murrell, Defender, brief, whom was Alan H. Public *2 appellant. Stephen Attorney General, B. Caplis, Assistant with Sachs, Stephen Attorney General, brief, whom was H. on the for appellee.
Cole, J., opinion J., delivered the ofthe Court. C. Murphy, J., J., and dissent. C. filed a dissenting Rodowsky, Murphy, opinion infra, in page J., which joins. Rodowsky, question
The here is whether the trial court erred when it refused to in closing argument allow defense counsel comment of any the lack respect with fingerprints on allegedly the vehicle escape by used appellant.
Early evening in the of question, date events appellant, Wayne Eley, Jonathan was involved in an altercation with family several members of the Gary of A police Johnson. officer was called to the scene and he dispersed Eley away and group escorted from the area. later,
Approximately dancing one hour while outside the altercation, entrance of bar near a the scene Johnson thigh. was shot in each Moments later a car owned and Jones, driven passerby, Ms. Ada a was taken from her at gunpoint day and away driven the robber. The next car was found abandoned but intact.
Several weeks appellant later was arrested charged, among other things, with assault with intent to murder robbing Johnson and Ms. Jones of her car with a deadly weapon. Eley by jury was tried in the Criminal Court of Baltimore. Jones, Other than Ms. all identification witnesses Gary were relatives Johnson. One testified that moments shooting, after the she appellant saw the in a car in front of the bar A holding rifle. second testified that at the time ofthe shooting, "large guy she saw a running up the with street A rifle his hand.” third testified that he actually saw the appellant shooting toward the bar. Ms. identify Jones was unable to as the one who having present at the Eley car. denied took her after the earlier confrontation and claimed that shooting clothes, home, family, packed went his he with the Johnson in with friends. and moved presented any witnesses to listed nor State neither performed tests had been on the
discuss whether presented evidence whatsoever Jones vehicle. No absent. were either fingerprints argument, the beginning closing Prior to defense counsel court instructed: jury. I you may address the right, Belsky,
All Mr. — either going interrupt like I’m not one don’t it, you gentlemen I but must help if can you you you think yourselves to the facts confine If therefrom. proved any reasonable inferences *3 you off. that, I am to cut you going outside get as During argument proceeding defense counsel was his interrupted: court follows when the testimony BELSKY: We talked about MR. testimony all this Dorseys. We talked about that didn’t Let’s talk about the evidence that was in. — exist, talk about happen. that didn’t We dangerous treading on some COURT: You are THE for three Belsky. We can be here ground, Mr. talking happen. about what didn’t months — Honor, I Well, BELSKY: Your Honor Your MR. — want to going get not to a chance to THE You are COURT: You must confine happen. talk about didn’t what — your arguments about yourself arguments the evidence that existed. requested counsel
At the conclusion of defense objection: following and made the approach the bench —please BELSKY: Your Honor MR. Yes
THE COURT: sir. — I proper BELSKY: it is evidence MR. believe — go into a proper closing argument go into there was no fingerprint evidence done to the car. I think your that’s covered in instructions and I would like my objection to note record.
THE I COURT: don’t think it is proper evidence to
argue what you got your wasn’t. And objection on your the record and objection duly your noted and objection is overruled.
Appellant guilty was found custody sentenced to the of the Commissioner of Correction. appealed He to the Court Special Appeals which affirmed in unreported an per opinion. Eley State, 1039, curiam Term, No. September 1978, filed September 1979. granted This Court then Eley’s request for a writ of certiorari.
Eley contends that the trial court erred when it refused to
allow defense counsel in closing argument to comment on
the failure of the State
fingerprint evidence with
respect to
escape
vehicle. He asserts that the trial judge
beyond
went
limiting
arguing
counsel from
facts outside the
evidence. Rather he contends the trial judge improperly
precluded counsel from arguing
logical
inferences from
the facts
gaps
in that evidence.
State,
Wilhelm v.
404, 413,
272 Md.
(1974), we
addressed
some
permissible
detail the
scope of
closing argument. As a limitation we cautioned "that
counsel should not
permitted by
court,
proper
over
objection, to state and
comment
facts not in
to state what he
Id.,
could
proven.”
citing Esterline v.
(1907).
purposes and application of this limitation as well as a consideration of related situations in which comments a lack of evidence have been deemed proper leads to the conclusion that the trial court in erred finding the limitation applicable to the case at bar.1 1. We are aware a number of contrary other courts have reached a State, 361, 102 (1958); conclusion Jordan v. 267 Ala. Terry, So. 2d 4 State v. (Mo. 1971);
552 for prevent of the rule is to counsel purpose
The broad
attempting to
prosecution
the defense from
either the
or
not
to be
jury
ought
matters which
introduce
guilt or
arriving
at a determination of
considered
arguments
appeal
which
Proscribed are
innocence.
of
"may
poison
so
minds
passion
prejudice
or
which
deprived of a fair trial.” Wood
jurors
may
that an accused
(1949);
State,
643, 652,
316
Toomer v.
192 Md.
65 A.2d
v.
(1910);
State,
285, 292-93,
cf. Contee v.
112 Md.
277 (voiceprints). of State introduce results application represent rigid of the opinion these cases our general rule. *5 On appeal the circuit court first stated that defense argument for proper. counsel’s an adverse inference was It prosecutor then held that the statements of the were they improper as went outside the record referred to Moreover, proven. facts which could not be such comments put the personal knowledge and belief as well as the credibility attorney reasons, on the line. For these granted court reversed the conviction and a new trial.
Accord,
Beier,
People
29 Ill. 2d
Perhaps a cogent enforcing more reason the rule is that arguments of are counsel which outside the record are improper they because allude to sources which are not sub- ject to cross reliability. examination and cannot tested for Permitting such arguments denies the right defendant the to confront his accusers. case,
Turning the instant permitting we find that defense to argue counsel that the State’s unexplained failure to produce fingerprint evidence should permit the adverse inference that the evidence would have been unfavorable to the State does not present danger of the kinds of abuses designed which the First, rule to prevent. the comments which the defense sought way counsel to make were in no designed appeal passion to the prejudices jury. important, More they were not intended as a statement of fact or calculated to the purpose Rather, serve of evidence.
the excluded comments went strength of the prosecution’s or, more specifically, to the lack of evidence. It is the State which has the burden of producing evidence sufficient to jury beyond convince the a reasonable doubt that the defendant is guilty. only
Here the who Eley witnesses identified were relatives who, of the victim light of the previous conflict between family victim’s Eley, may have had a motive for fingering Eley as the assailant. The driver of the vehicle in question identify could not positively the appellant; how- ever, the State had available to it a better method of — identification fingerprint evidence. This Court has taken judicial high notice of the degree reliability accorded to 85-86, Murphy
such identification.
*6
374,
State, (1944);
generally Reed v.
A.2d
see
239
(1978)
dissenting
majority and
where both the
Finally, we cannot conclude that such
able,
prosecutor
to both
It
the
equally
was
available
sides.
facility
per-
the
to
through
police department
who has the
knows
important
prosecutor
form these
More
the
tests.
what results were
performed
whether such tests were
impose upon
plainly
achieved. It would be
unreasonable to
examining
police
cross
or of
a defendant the burden of
that
when
calling
appropriate personnel
stand
his interest.
well result in evidence adverse to
might
action
forth the
bringing
It is the State which has the burden of
say nothing.
The
evidence.
defendant need
In
support
jurisdictions.
find
for our view in other
We
(Alaska
1976),
was
appellant
closing attempted ability produce State had better evidence do making tape recording and their failure to so should the inference that would not permit tape favorable the State. This was foreclosed Supreme agreed trial court. The with Court of Alaska appellant’s counsel and reversed the conviction. It said "[clounsel’s argument concerning the for the reasons departure from practice normal within the range permissible argument.” 551 P.2d 941. Carter,
In People App. 73 Ill. 3d 392 N.E.2d 1979), case, (App. robbery Ct. an identification of the two defendants was immediately made after arrest while both were handcuffed. There was no line up. defendants were *7 only ones In closing argument, for the witness to choose. hardly defense line-up. counsel remarked is Shouldn’t 'Tilt there have been a line-up?” the course of reversing grounds, conviction on other the court addressed the propriety counsel’s remarks: reasonably
One can draw some adverse inference from the use of an inferior superior method when a readily [one] was available .... defense here discussing was the evidence. Counsel never suggested police anything that the had illegal, done immoral, or improper, anything not in else evidence. [329 192.] N.E.2d at that,
We agree where there is unexplained silence concerning routine and reliable method of identification especially in a case where the identification testimony at least subject to question, some it is within the scope of permissible argument to comment on this gap proof Here, Eley offered.2 sought to argue that the State had a 2. today Our interpreted decision must be not as an invitation to the prosecution in a criminal case to comment the defendant’s failure to produce might evidence to refute the State’s Such evidence. comment well impermissible amount to an reference to the defendant’s failure to take the Moreover, stand. even if such a comment were not held tantamount to one might that the defendant to failed take the stand it in some cases held improper to an shifting proof constitute of the burden of to the defendant. by proving he the assailant
reliable method of his on the car. Since introducing fingerprints so, explain sought did its do he to establish State not failure to counsel, inference, his through argument of that the adverse and, on the car therefore he was not fingerprints were not argument permissible This seems to us to be the scene. could not of the that Ms. Jones particularly light fact may witnesses identify him as her assailant and that other jury their regarded as biased because relation to Johnson. the limitation we believe circumstances
Under these scope of counsel’s court defense placed by the trial abuse of error and an prejudical constituted Accordingly, we reverse. discretion. Special the Court of
Judgment of reversed case Appeals to court with remanded the judg- reverse instructions of the Criminal Court of ment to that and remand Baltimore trial; to be a new costs court for City Mayor paid
Baltimore. Council of J., dissenting:
Murphy, C. reversible judge that the trial committed The Court holds argue he refused permit error when jury prosecution’s failure *8 he was not the an inference that supported evidence at trial crime, not the guilty and hence was at the scene the I think the Court has holding, In so charged. offense unwisely salutary principle from of Wilhelm departed the (1974) "counsel 404, 413, 707 that 326 A.2d court, objection, proper the over permitted should not be or to state comment facts not in evidence upon to state and 1979) (Ct. Shannon, App. People App. Cf. 88 Mich. N.W.2d (where any testify proof, prosecution defendant did not or offer the nonproduction improperly commenting shifted the the of witnesses on proof to burden of the defendant. dissent from the proven.” therefore what he could have of the conviction in this case. reversal testify by prosecution the only officer called police
The Shaffer, appellant arrested the Officer Robert who was He was not asked about the shooting. weeks after the several Indeed, evidence. fingerprint or nonexistence of existence cross-examination, that had not brought it was out Shaffer investigation in the of the crime. participated fingerprint to assume that evidence majority The seems appel- consequence to the State and as was available inference arose justified arguing that a favorable lant was Court, evidence. The nonproduction as a result of the of such the vehicle was unable to noting after that the driver of "the had available to identify appellant, says that State — fingerprint evidence.” it a better method of identification upon that "it is not incumbent acknowledging While guilt,” the produce fingerprint prove evidence to State that goes Court on to state may a better method of identification
"where explanation no available and State offers come forward with such whatsoever for its failure to evidence, the defen- it is not unreasonable allow dant to call attention to its failure to do so.” fingerprint in this does not indicate that evidence case not a shred evidence was available to the State. There was fingerprint that presented of evidence at the trial to indicate made, made, should have or were tests could been made the commandeered automobile. Since no such presented, purposes evidence was one of behind clearly recognized as in the applicable, Wilhelm rule is i.e., majority suggesting "to counsel from opinion, prevent presented thereby providing which was not at trial evidence grounds finding additional a defendant innocent or guilty.”
Clearly, closing argument intended to suggest available State reliable method it was a more although eyewitness testimony, identification than the State’s *9 by the prosecution fingerprint evidence withheld crime scene. No that he was not at the because it established such an inference and support were in evidence to such facts properly limited the judge this reason that the trial it was for under closing jury argument scope appellant’s of the Wilhelm. concluding in that wrong, my opinion, in
The Court a impose upon unreasonable to plainly "It would be examining police the burden of cross defendant to the stand calling appropriate personnel or of action well result evidence might when that which has the his interest. It is the State adverse to the evidence. The defen- bringing burden of forth say nothing.” dant need statement, suggest
By this the Court seems producing its reason for not prosecution explain must in order to against an accused potential sources of its favorable inferences from prevent drawing him from completely while the defendant can remain nonproduction, "plainly I believe that it is unreasonable” silent. do not cross-examining police offi- defendant has the burden which to draw a favorable lay cer to a foundation if not been closing the matter has inference cases by the The better reasoned previously raised State. support this view. (1958),
In
267 Ala.
102 So. 2d
Jordan
nonproduction
the fact of
appellant attempted to use
closing jury argument
in his
but
fingerprint evidence
objection
appeal,
was sustained
the trial court. On
State’s
affirmed,
noting
the court
that no evidence had
attempt
fingerprints
an
to secure
had
produced at trial that
had failed to
witnesses
produce
been made or that
State
evidence,
knowledge
fingerprint
relevant
having
could have cross-examined
although
concerning
the existence of
investigating officers
evidence.
Pa.
Ct.
(1978), closing jury argument sought the defendant in to use *10 the fact that no evidence had been produced support trial to an inference that such evidence would have exculpatory. The objec trial court sustained the State’s ground justify tion on the that there was no factual basis to although inference accused could have Therefore, investigating cross-examined the officers. closing
accused’s improper because he was attempting present jury matters to the that had not been placed Latimer, into evidence. See also United States v. 511 (10th 1975); Wilkins, F.2d Cir. United States v. (E.D. 1976); Beier,
F. Supp.
People
Pa.
29 Ill. 2d
(1963);
I think that the trial court’s refusal to allow Eley argue the lack of fingerprint evidence jury proper was a exercise of discretion, the trial court’s and would therefore affirm the conviction.
Judge Rodowsky authorizes me to state joins that he opinion. this