*1 v. STATE OF MARYLAND CLYDE POOLE TIMOTHY Term, September 1982.] [Nos. 9 and January 1983. Decided *3 J., argued The cause was before and Murphy, Smith, C. Rodowsky and JJ. Eldridge, Cole, Davidson, Couch, George Burns, Jr., Defender, E. Public with Assistant Murrell, Defender, Gary whom were Alan H. Public S. Offutt, Defender, brief, appellant. Assistant Public on the
Stephen General, B. Caplis, Attorney Assistant with Sachs, General, whom Stephen Attorney were H. Handel, General, Deborah K. Attorney Assistant on the brief, for appellee.
Couch, J., opinion delivered the of the Court. Murphy, C. J., JJ., and Smith and concur and dissent as to Rodowsky, portions JJ., opinion. of Part 1 of the Cole and Davidson, concur portion as to of Part 1 and concur as to Part 8 and J., dissent as to Part 2 b of a opinion. filed Murphy, C. infra, in concurring dissenting opinion at page 197 JJ., J., which Smith join. filed a Rodowsky, Davidson, infra, in concurring and dissenting opinion page 201 at Cole, J., joins. which
Subsequent to our reversal of the Timothy conviction of (of Clyde Poole1 of premeditated murder David C. (of MacLarty), felony Horad), murder robbery Steven Scott with dangerous a weapon and use of a handgun a crime violence, of for which the death penalty imposed by was a jury in retried, the Circuit County, Court for Calvert he was remand, on our by jury a in the Circuit for Court Charles County. Again, was convicted for the same and, offenses again, the penalty imposed. death was Upon legislatively our review,2 mandated we automatic shall appellant’s felony reverse conviction of murder of Steven Horad and handgun use of a in a crime of In addi- violence. tion, we shall convictions, affirm the remaining but vacate MacLarty’s sentence of death for murder and remand for a sentencing proceeding new provisions consistent with the Maryland (1957, Vol.), Repl. 27, § Code Article 413. parties agreed facts, have upon a statement which purposes opinion, of this we as follows: summarize Creel, student,
David
a
testified that he was
working MacLarty’s
Pharmacy
evening
on the
22, 1979,
October
o’clock,
at approximately eight
two black
when
put
men entered the store. One
a
mask over his head as he approached the backroom
where Dr. David MacLarty was preparing prescrip-
(identified
tions. The
man
by
second
Creel as the
appellant),
wearing mask,
approached the
counter where Creel
working,
pointed a
shotgun at him and told him to lock the front door.
Two shots were fired in the backroom and Dr.
said,
MacLarty
anyone
"Is
else out
Creel was
there?”
by
ordered
gunman
say
no and forced to the
backroom.
they
There
found the masked man
(Steven Horad) lying on the
MacLarty
floor and Dr.
standing gun
the safe with a
hand
his
"military”
Creel’s assailant
then shot
stance.
(Poole I).
(1981)
State,
1. Poole v.
290 Md.
MacLarty shotgun get with the and ordered Creel to money. picked up gun lying The assailant head, MacLarty, MacLarty’s beside held it to pulled trigger twice without result. He then took premises. about from Creel and left the $150 MacLarty Both and Horad later died. testimony,
During his Creel twice identified the appellant participant robbery as the second in the person MacLarty. and the who shot Creel’s testi- mony also showed that he had made a photographic day inci- appellant identification after the and, subsequently, positively dent identified the appellant in line-up.
When shooting informed of the incident the next whatsoever,” and day, Poole showed "no reaction said he had not seen Horad since the afternoon of shooting, October 22nd. At the time of the appellant signed out ofhis residence at "Dismas House” on a pass Neptune six-hour for 3-H Court. He stated he had been at that address with his Lanier, roommate, girlfriend, Jennifer and her However, Tamara White. Tamara White testified Neptune that Poole had not been at 3-H Court evening of October 22nd. appellant presented types
The four of evidence at case, the trial: evidence to weaken the State’s alibi evidence, evidence, character appellant’s testimony. testimony This evidence included the Officer R. L. Tucker regarding the initial statement Creel, he describing burglars took from both wearing masks. Yvonne Bethea testified that the appellant at evening had been her house on the 22nd, October with Her helping her her studies. testimony was corroborated appellant. testified that once Lanier he realized home, would not be he went to He had not Bethea’s. originally reported being penalized this for fear of Major violating rules Dismas House. Corrections, Department Campbell, Thomas V. *6 Morrell-Carlton, Shirley Morgan State Univer- and sity, opinions their of Poole’s regarding testified good character. jury guilty premeditated found of the
The Poole felony MacLarty, felony the murder murder of Horad, handgun in robbery, of armed and use of a the commission of a crime of violence. issues, as to appellant
The has raised a multitude of both trial well guilt stage the or innocence of the as as the sentencing shall discuss these issues as nec- proceеding. We essary to reach in this explain the conclusion we case.
1.
above,
convicted,
As
indicated
the
was
inter
alia,
co-felon, Horad,
felony
involving
of
murder
his
and the
In
handgun
prior
use of a
in a crime of violence.
our
decision
case,
appel-
this
left
of whether
open
question
we
Horad,
guilty
felony
lant could be found
of
murder
who
here,
actually
was
killed
MacLarty.
appel-
the victim
The
argues
lant
that on
holding Campbell
the basis of our
v.
State,
438,
(1982),
293 Md.
érate. at 81. Because we beyond not could be sure a reasonable doubt that the "dead” counts were into influenced the not taken consideration or jury’s finding guilt, ultimate concluded that the we error "harmless” reversal was could be deemed mandated. (1976). 638, 659, Dorsey State, v. 276 Md. 350 A.2d case, In the instant which was decided prior Campbell, although jury was allowed to take the indictment into deliberation, during room there were no "dead” counts acquitted indictment. Poole had not been on any against charged counts. indictment him him with, alia, inter the murder of a handgun Horad and use of in the of a felony. Accordingly, commission these counts properly were submitted to the jury. *7 Court, time,
In Campbell, this for the first held: "[Ojrdinarily, felony-murder doctrine, under the culpability imposed criminal shall continue to be for all lethal acts committed a felon an accom- or plice acting in of a design. furtherance common However, culpability ordinarily criminal not shall imposed be for lethal acts are of nonfelons that not committed in furtherance of common 293 design.” omitted). (Footnote 451-52,444 Md. at A.2d at 1042. We must impact ruling now determine the of our Campbell Clearly, on the at bar. case Poole’s conviction for the murder of Horad stand. Notwithstanding cannot conviction, reversal of that we find that of submission jury count to the not require respect does a new trial with appellant’s conviction for MacLarty murder. The responsibility jury was consider count each make a guilt determination as to or innocence thereon any without consideration of other It well count. estab- in an if regarded "[e]ach lished that count indictment is as it 1981, it was Although we 758 a was amended note 3. Md. Rule substantively rather than changed. It of three sentences now consists one.
175 Moulden, 666, 292 Md. State v. indictment.” separate awere (1982), See cases. 699, citing numerous 681, 707 441 A.2d 189, 393, 390, S.Ct. States, 52 U.S. 284 v. United also Dunn 546, State, 274 Md. (1932); v. 356, Ford 190, 358-59 L.Ed. 76 271, State, 224 Md. (1975); v. Ledbetter 552, 81, A.2d 85 337 55, State, Md. (1961); v. 596, Williams 274, 167 A.2d (1954). here the circumstances Under 102 A.2d its jury to consider for the no reason there was present, deliberating on the count when on other counts conclusion As a MacLarty’s murder. with charging first as that count fact, likely considered jury matter of first on appeared in the indictment it count one appel that the it is obvious importantly, verdict sheet. Most on MacLarty rested of the murder lant’s conviction for testimony, Creel’s jury believed credibility Creel. If the two of count The submission they guilty. to find Poole had (Horad’s the count murder), well as the submission murder” violence in crime of handgun "use of regarding (count nine in eight and and counts on the verdict sheet four from Creel’s indictment), to or subtract did not add credibility.
Furthermore, instructed judge properly the trial part: in pertinent charged in the indictment the Defendant is
"Now committing four him with pending against that is have to consider each crimes. You will different *8 consider them you will have to these crimes and separate and distinct they because are separately crimes.” we clear and instructions were believe the court’s
We Moulden, See, e.g., them. jury that the followed assume 705, cited 678, and cases 441 A.2d at supra, 292 Md. at States, 391 U.S. v. United 8. also Bruton therein note See (1968). 476, 1627, 20 L.Ed.2d 135, 88 S.Ct. new trial to not entitled to a Accordingly, appellant the or innocence. guilt determine
However, we do agree appellant’s with the contention that of felony reversal the requires conviction of murder of Horad that death imposed the sentence for his conviction of premeditated of MacLarty murder be vacated. Notwithstanding the that jury properly fact the that instructed it was determine the to whether death sen- only tence imposed regard should be in the degree first premeditated MacLarty, murder ignore of we cannot the fact that оn this preceding day jury the same had convicted the felony of the murder of Horad. Our review of the that, during sentencing record indicates the proceeding, numerous references were made to the or guilt innocence stage Initially, prosecutor of the trial. indicated to the trial in judge, presence jury, of the the aggravating that by the upon circumstance relied State was "that the Defen- murder, dant committed the committing attempting or robbery, arson, rape commit or or sexual offense the first degree, circumstances, course, the aggravating robbery.” prosecutor pertinent then part: stated circumstance, support
"To that State would adopt testimony Finding and exhibits and the in the chief establishing trial aggravating existence of that circumstance.” (Emphasis supplied). the testimony appellant’s
Prior to character wit- nesses, trial judge jury: informed the gentlemen, you
"Ladies and let me explain notice, judicial The Court takes notice of takes Court, the proceedings that occur within The as the case, finders fact in can notice of the this take and/or findings facts in the criminal case that was tried, you just brought back a verdict on.
inSo considering aggravating circumstances may you take what notice of the conviction was and ” (Emphasis in that supplied). facts case. *9 to the testi- jury, subsequent to the In his instructions proceeding: earlier mony, judge the trial referred circum- aggravating you would over to go "Then must deter- Okay. you Now 10. number stances has been mine, that on the evidence based matter, based on with this in connection presented, case, you are or your knowledge of the whether doubt beyond a reasonable unanimously convinced number exist. aggravating circumstances that used in of reasonable doubt Now the definition that the same as used stage proceeding, ofthe is this that is one stage proceeding, in the first of the and you guilt or innocence that in which determine you beyond reasonable proven it be a is that must that in this case the certainty, and to a moral doubt committing murder while Defendant committed the arson, rape, or attempting robbery, to commit or or in degree. sexual offense the first in robbery as used respect Now with definition, you that The Court would advise armed robbery, you robbery degree in fact greater is my yesterday, from which will recall instructions guilty you I in order to find someone instructed robbery you have to find that the of armed would crime, Defendant that the Defendant committed dangerous used robbery, committed a and that he added). deadly weapon.” (Emphasis addition, part: prosecutor argued In relevant establishing
"The had the burden State circumstance, aggravating and the cir- aggravating on, relying number cumstance that the State Mr. your yesterday, finding Poole verdict robbery, The Court has guilty of armed which robbery degree higher indicated is a during murder the commission occurred robbery. armed *10 already
You have your returned verdict on the aggravating circumstances and has proven been beyond a reasonable doubt that the murder occurred during the robbery commission of a that is what the State is relying on as the aggravating circumstance, which requires you then your move on in search for determination as to any whether mitigating circumstances exist.” added). (Emphasis Kimble,
"Mr. I am mentioning now hе did not testify in the sentencing phase, he testiGed during trial, as a character witness. IAnd think his course, testimony, of should be by you considered this time part of sentencing.” his (Emphasis added). you
"When testimony remember the of the last few days, and compare it to the testimony today, you got wonder, have can it be the person?” same added). (Emphasis
"Is it split personality? Or is it something like added). I suggested yesterday, . . . .” (Emphasis * * * only evidence, course, "The other of the evidence trial, adduced at the you other than what heard today, I don’t think much needs to be said about. You know what he did. There is nothing mitigating whatsoever in his night actions on the 22, 1979,____” October
Finally, attorney defense commented on what occurred during guilt stage: or innocence trial [the what back for a moment "Think case, in this you deliberated you told before judge] added). . (Emphasis . .
" you Yesterday proof evaluated standard you proof upon, the case the standard your mind resulted and must result decided proof being that standard of guilty, Mr. Poole found doubt, beyond a reason- beyond a reasonable added). (Emphasis able doubt.” convicted, your from decision "And now he stands *11 MacLarty, Doctor for yesterday, for the murder of Horad, robbery, Mr. use of a felony of of armed the felony.” gun, (Emphasis hand of a commission supplied). liability the of Poole for jury’s knowledge
We the believe appellant. may to the prejudicial Horad’s death have been felony for murder of appellant’s the conviction Because be sure that improper, Horad was and because we cannot influence consideration ofthe now vacated conviction did against the circumstаnces jury weighing mitigating in their deter- reaching and aggravating circumstance say the impose penalty, mination to the death we cannot Dorsey, beyond error reasonable See was harmless doubt. is vacated supra. Accordingly, imposed the death sentence with proceedings remand for further consistent we shall this opinion.
2. misconduct appellant prosecutorial The also contends that contention, requires In it is claimed support reversal. of this engaged "pat- that throughout prosecutor trial the tern had improper potential conduct influencing improperly jury.” identifies prosecutor’s part: four areas of on the special misconduct by improperly a. appealing jurors’ fears and
passions, byb. improperly arguing that the appellant’s alibi
witness would have protested his innocence immediately upon discovering he had been accused and volunteered to take a lie detector truth, test were she telling the by improperly c. commenting upon the appellant’s
failure to tell his version of what he did on the day question, by improperly
d. arguing that the appellant’s coun-
sel had conceded appellant’s guilt. The appellant argues further pattern of misconduct ran through the cross-examination of certain witnesses they defense. We shall address these complaints as were presented.
Prefatorily, we observe in large measure the conduct of a trial is left to the sound judge, discretion of the trial exercise of which will not be appeal disturbed on absent an State, abuse 404, 413, thereof. See Wilhelm v. 272 Md. (1974). A.2d 714-15
a.
*12
It is argued
questioning several of the appellant’s
witnesses
they
only
to show
knew him
under limited circum-
stances and had never met him on
night,
the street at
prosecutor
playing
was
on the
passions
jury.
fears and
of the
so,
contended,
This is
it is
judicially
because we can
notice
a general public
crime,
fear of violent
which is more
prevalent at night. We find no
argument.
merit to this
In the
context in which
type
question
asked,
this
we con-
clude such questioning was relevant. All of the involved
clearly
witnesses
were expressing
experi-
their favorable
ences with and opinions of the appellant from a limited
setting not at all similar
the setting surrounding
to
the com-
mission of
They
the instant crime.
appellant only
all knew
school,
him at
at
contact,
daytime, with
in the
from their
he
training
where
assisted
schools
different children
In
he lived.
our
half-way
in which
staffs,
house
and at the
to attack the
prosecutor
view,
to allow
appropriate
it was
in the manner
witnesses
testimony of these
weight of the
may intro-
accused
elementary "that an
It is
which he did.
character,
good
reputation
testimony
general
of his
duce
testimony as
may then offer rebuttal
"that the State
...” and
to
may cross-examine
contrary, or
to the
reputation
to a
of char-
with the trait
inconsistent
report of acts
public
show
publicly
to be
has asserted
the witness
acter which
State,
Md.
v.
Comi
attributed to the accused.”
(1953). Certainly it would tend
478-79,
131-32
97 A.2d
bring
out
testimony
these witnesses
to detract from
limited
Once such
appellant.
to the
exposure
their limited
cross-examination, it was
through
established
exposure was
testimony
appellant’s
up
weigh
view,
In our
the cross-examination
character witnesses.
is distin-
Morrell-Carlton
Campbell and
defense witnеsses
in Clarke v. United
remarks
guishable
prosecutor’s
from the
(D.C.
1969),
by the
upon
relied
States,
App.
"Now, at the circumstances take a look Imagine yourself they carrying were theirs. which street, of a In the middle in those circumstances. Thursday street, on a
busy quarter of four about; men afternoon; these two people with a lot of yourself waiting weapons. Imagine have these two — you it could be those two or three buses for one of — — men you waiting right next to these it could be weapons. they have these two carrying dangerous and They charged are with deadly dangerous and deadly weapons. Are these should be allowed weapons people these *13 walk street, around in the busy street, middle of a quarter at a Thursday afternoon, four on a when you are coming you offa bus— when coming are out — of a you store when are walking down a street? youDo want people in the District of Columbia to these, walk around with under those circum- Id., stances?” (emphasis 786-87 in original). We also note that while the court did not condone such behavior, stating "[i]t was wrong prosecutor for the play personal on the jury did,” fears of the as he reversal of Clarke’s Id., conviction was not necessary. deemed at 787.
b. It is next contended that the trial judge erred when he denied appellant’s motion for a mistrial made during the course of the prosecutor’s closing argument guilt or stage innocence when he commented on the failure of the (Yvonne Mitchell) appellant’s alibi witness Bethea to volun- teer to take a lie detector test and appellant’s failure to make a statement. The trial judge concluded:
"I deny will the motion for a mistrial. I don’t think the intended, remarks were they nor did give impression Bethea, that Mrs. now known as Mitchell, Mrs. was offered and refused a lie detector test. comment,
That the second that if she had wanted to she gone could have police with her alibi prior coming to court and testifying, and as to the Defendant, as to the Defendant never testifying or made a police officer, statement to a I think the interpret would well, State’s today remarks that is the first time we are hearing about this alibi he trial, has offered in this the first time we hear about it.
I don’t think that any that has been prejudice to the Defendant in this case and deny will motion.” *14 judge the trial argues simply is appellant
What the think the a mistrial. We his motion for granting in not erred above, the noted Initially, and as sought too much. appellant the trial court. discretion of one left to the sound issue was 723, A.2d at we said: Wilhelm, 326 supra, In 272 Md. in case is mistrial a criminal request "A for a the trial court discretion of addressed to the sound discretion, involving in case the exercise of its infringe upon might which question prejudice trial, fair to a right of the defendant or not determine whether appeal reviewable on to by the of that discretion there has been an abuse by The decision denying trial in the mistrial. court in of its discretion the trial court the exercise appeal reversed on denying a mistrial will not be prejudice been to unless it is clear that there has omitted). (Citation defendant.” used, plain it is to that "lie detector” was the context Within trial on this basis. not denied a fair appellant us that the to take a lie failure to volunteer The referenсe to Mitchell’s standing item not stated as an isolated detector test was itself; rather, starkly along with several other by appeared it addition, noted have taken. In as actions the witness could mistrial, "the by denying in the motion for judge the trial that ... Mitchell give impression [not] remarks . .. did test.” [had been] [to take] offered refused a lie detector [but] Finally, most drastic appellant sought we note that the remedy than, to example, available rather an admonition State, Lusby disregard the statement. Cf. v. (1958). 191, 141 find no Accordingly, Md. A.2d 893 we reversible error here.
c. denying argues Next that the court erred prosecutor his had motion for a mistrial because improperly improperly prior proceeding referred to a commented on tell his failure to his version prior of events testifying Raithel, Relying the instant case. on State v. 478, 484, (1979), 285 Md. 404 A.2d he contends the prosecutor’s statement was a comment on his "post-arrest” silence and improper was as if evi- direct dence such silence had been introduced at trial.
The State argues simply "[t]here was no comment prosecutor [appellant’s] on right post-arrest silence.” agree We with the State’s It is position. clear to us that the prosecutor was attacking appellant’s testimony as, trial effect, being manufactured after having heard the State’s *15 evidence, not that he had not come forward after his arrest version, and told his which he was not obligated to do. Moreover, it is patent that the State was commenting not on the appellant’s testify agree failure to at an earlier trial. We with the trial jury’s court that the interpretation be would "today is the time hearing first we are about this alibi he has offered this trial. ...” We think the could matter have easily up by been simple explanation jury, cleared to the which arewe confident trial judge the would have had done he been so requested. judge The trial did not abuse his by discretion denying appellant’s the motion a mistrial on this basis.
d. Finally, the appellant complains prosecutor that improperly argues that appellant’s had counsel conceded guilt. During argument, the State’s prosecutor rebuttal stated: other, very
"One
very,
interesting remark that
McCarthy
let,
Mr.
I
said that
can’t
cannot avoid
calling
your
attention. And I never have heard it
quite said
says my
before. He
client is
or
guilty
not
guilty
rather
this crime. He did not commit this
crime,
crime,
but
you
if
believe he did commit this
—
—
conceding
Conceding
guilt,
that
his
not
But
—”
you
assuming
do find
guilty
him
guilty
of miscon-
concept
prosecutor
that a
Building on the
defense counsel does not believe
argues
when he
duct
defense,
validity
appel-
ofhis
innocence or the
his client’s
reverse;
appellant’s
we decline to do so. The
urges us to
lant
jury
remark was sustained and
objection to the State’s
conceding
[was] not
instructed "that the Defense
was
addition,
prosecutor
In
corrected
guilt.”
Defendant’s
"conceding
[the
that he meant
explained
himself
charges
in this
jury] might
guilty
find Mr. Poole
case. . . .” We are persuaded
prosecutor’s
"[t]he
was more than
'conceding’
unfortunate use of the term
comments,”
later
adequately
by
prosecutor’s]
[the
remedied
that "it
by
judge.
and the
the trial
We conclude
instruction
actually misled or were
appear
[does not]
that the
were
likely
prejudice
to have been misled or influenced
and,
[appellant] by
[prosecutor],”
the remarks of the
accordingly,
ground [is]
"reversal of the conviction on this
Wilhelm,
415-16,
justified.”
supra,
not
In find we no merit to the multi-faceted presented preju- attack was not this issue. and, therefore, diced prosecutor’s remarks judge entitled a mistrial. We conclude that the trial properly requests denied the for a appellant’s mistrial.
3. appellant’s The next contention concerns claimed error in the trial judge’s respect instructions with to reasonable doubt. exception portion Because no was made to this of the trial, preserved instructions at the the issue is not for our however, review. provide, Md. Rule 885. Rule 757 h does "may we cognizance any plain take of and correct error in instructions, the rights material to the of the defendant even though objected by as provided [Rule error was 757 f] n ”
The appellant’s argument through thrust ofthe is that two examples given by judge, of reasonable doubt the trial
186 State was relieved its reasonable doubt burden and convict, jury finding by could him guilty preponderance do not agree. appellant argue evidence. We seems to that the of the concept requirement, "without hesitation” State, 232, explicated 241, in Lansdowne v. 287 Md. 412 (1980), 88, State, 84, A.2d and Montgomery 92-93 v. 292 Md. 95, 654, (1981), 437 659 A.2d was left out of the instructions However, record, here. from our review of the it is clear that given judge.4 factor of hesitation was the trial Moreover, out, State aptly pointed as the has this has Court recently just "satisfactory held that there is not one explanation of reasonable doubt we decline prescribe an every Id., 95, instruction that will apply case.” 437 A.2d at It 659-60. is well objection settled "when is instruction, raised to a court’s attention should not be context, focused on a particular portion lifted out of but its is adequacy by viewing determined it as a whole.” rather Foster, 388, 397, 411, (1971), State v. 263 Md. A.2d 283 415 denied, cert. 406 U.S. 31 818 S.Ct. L.Ed.2d (1972). view, whole, In our when read as a the instruction doubt; adequately thus, explained reasonable there is no plain error for us to invoke Rule h.
4. trial, At beginning prospective jurors before dire, were sought examined on voir leave to have request individual examination in camera. This alleged. denied also and error Error is claimed because jurors voir capital requires dire in cases to be "death qualified” resulting jury in a more inclined to convict if, sentence to than would non-capital death be the case as in cases, the voir dire examination did not involve "death qualification.” doubt, defining pertinent part, 4. In "It is reasonable the court stated in person
such a doubt graver that would cause a reasonable to hesitate to act in important (Emphasis supplied). or more transactions of life.” qualification” 5. apparently "Death mem- means contains no *17 automatically bers against penalty, who would vote death or who would the
187
issue, we are not
voir dire
the individual
respect With
of this
on the facts
argument
by
appellant’s
persuaded
the
during
scope
questioning
conceding
While
case.
of the
within the discretion
non-capital cases is
voir dire in
open court examina
contends
judge,
trial
body
adequately
does not
in a
prospective jurors
tion
upon
Appellant
relies
protect
jury impartiality.
5,
posi
of his
n.
Hovey, supra,
supрort
California case of
con
However,
manner of
that the
it is well established
tion.
the sound
lies within
ducting voir dire examination
752,
and,
Md. Rule
other than
of the trial court
discretion
See, e.g.,
rules.
any
specific
or
governed by
statute
341,
1338, 1340
State,
337,
378 A.2d
281 Md.
Langley v.
of the
(1977),
reading
From our
cited therein.
cases
record,
by the
procedure
that the
used
persuaded
we are not
prone to
likely
produce
was
which was
judge
trial
penalty. Although
impose
convict and thereafter
the death
for "individual
appellant’s request
trial
judge
denied
camera,”
clearly
that individ
voir dire in
the record
shows
bench,
presence of
in the
ual voir dire was conducted at the
they had
jurors indicated
appellant,
prospective
where
pen
the death
"religious
scruples against
or conscientious
automatically vote
alty ].
[which would]
[them] to
[
..
cause
.” We believe
against
imposition
penalty...
of the death
in this case
extensive
"[t]he
voir dire examination
exis
adequate
more than
to uncover the
probing, [and]
State, 282 Md.
disqualification.”
v.
tence
cause for
Couser
denied,
(1978),
125, 141,
389,
439 U.S.
383 A.2d
398
cert.
(1978).
852,
158,
Accordingly, we
99
"It is
process
that the due
clause of
the fourteenth amendment
and Article
Maryland Declaration
Rights guarantee
right to
impartial jury
an
to
an accused
a crim-
case;
not,
inal
these constitutional guarantees do
however,
a prospective juror
insure that
will be free
of all preconceived
relating
notions
or inno-
guilt
cence, only
lay
that he can
aside his
or
impressions
opinions
solely
and render a verdict based
on the
presented
evidence
in the case. The constitutional
right to an impartial jury is basically protected by
questioning on voir dire examination aimed at
exposing the existence of cause for disqualification
and the law of
accordingly
this State
so limits the
scope of
may
the information which
be
obtained
a
right;
matter of
it does not encompass asking
questions designed to elicit information in aid of
deciding on peremptory challenges.” 282
atMd.
(numerous
138-39,
We conclude that there was no error committed the trial judge in the manner in which he conducted the voir dire and that the appellant right was not denied be his tried before a fair impartial jury.
5. (a) wit- of State’s appellant’s cross-examination During objection ques- an Creel, trial judge ness sustained his questions regarding a series during tion of Creel asked of the accused. photographic identification making following occurred: Now, you after saw [By McCarthy] Mr.
"Q. *19 23rd, tell police did the on photographs October man? that point yes, was you at that that [By Creel] Mr. A. No. Attorney ever told
Q. police Have the or State’s right guy? out the you you picked that had A. No. 23rd, I Now, I date of
Q. don’t mean on the anytime mean since then? being Your Honor Objection, ANDERS:
MR. irrelevant. Sustained.”
THE COURT: to appellant "attempt[ing] It is that he was claimed [by in-court identification Appellant’s determine whether identified by information that he had Creel] was influenced from his at ... rather than right person line-up thereby was robbery,” of the and he recollection have We improperly restricted in his cross-examination. to the and find no merit reviewed the record this area already had perfectly clear that Creel contention. It seems or Attor- police that at no time did the the State’s answered person. ney picked right him that out the ever tell he had objected-to question was cumulative Consequently, cer- or "[t]he best. It is basic that allowance disallowance to the normally tain is left questions on cross-examination reversed and will not be judge,” sound discretion trial except Beasley State, abuse that discretion. v. Md. (1974). 521, 527, 318 A.2d
(b)
Next,
appellant
error when the trial
claims
court
objection
overruled
questions
his
certain
asked of Officer
Tucker on
had
cross-examination. Tucker
been called as a
defense
discrepancy
witness
show that
there was a
be-
testimony
tween State’s witness Creel’s trial
and what he
told Tucker
respect
description
with
of the appellant.
In
explain
an effort
discrepancy,
this
the State asked
questions designed to
show that because
the extreme cir-
cumstances Tucker found when he went into the room where
were,
the two
particularly
victims
the condition of Dr.
MacLarty,
upset
he was
an
could have made
error
on
noting
report
his
Creel told
him both Horad and the
wearing stocking
were
argued
masks. It is
and,
event,
this line of questioning
any
was not relevant
prejudicial.
view,
In our
given the discretion a trial judge has over the
trial, Wilhelm,
conduct of a
supra,
191
fact,
witness,
trier of
to determine
jury,
as the
up
it is
the
State,
73,
282 Md.
Watson v.
credibility of the witness.
908,
denied,
574,
(1978),
437 U.S.
98
78,
cert.
577
A.2d
(1978). Accordingly,
see no
we
57 L.Ed.2d
S.Ct.
here.
grounds
of the two
listed
error
either
6.
judge
the trial
claim of error when
This
concerns a
issue
attempt by
to an
objection
by the State
sustained an
made
rеfer
counsel,
closing argument, to
during
appellant’s
criminally
priest had been
where a Catholic
a Delaware case
appellant
The
charged
the issue was identification.
knowledge
case
common
argues
since the Delaware
he
have been allowed
identity,
and one mistaken
should
that,
concedes
analogy.
to draw
it
an
upon
court,
permitted by the
ordinarily,
should not be
"counsel
upon
and comment
facts
objection,
over
to state
proper
Wilhelm,
proven.”
could
evidence or to state what he
have
Nevertheless,
supra,
Md. at
From we from the recorded glean what judge objection, followed counsel and trial between bench, to case is all certain that the referred it not at of mis- actually commonly known one qualify would as a stated: identity. During colloquy, taken defense counsel Honor, Your All I can is say, "MR. McCARTHY: — Brings is the is to this case common I knowledge case was about sense and common knowledge most common argument mention everybody in this courtroom country this night what in Delaware.” happened knows *21 To which judge replied: the trial knows, I anybody
"THE COURT: doubt Mr. McCarthy, and including me. I don’t know what happened you. in the case nor do You don’t why jury acquitted.” know Thereafter, counsel stated:
"MR. McCARTHY: The State withdraws the charges.”
agreeWe with judge the trial that the reason for the outcome and, therefore, of the Delaware case not clear that case ought be identity. used to illustrate mistаken Cf. Wilhelm, supra, atMd. 326 A.2d at "reference prosecutor made number to the of murders committed in — Baltimore upon widespread publicity based — given by such data was but a him direction to the a fact knowledge.” that was within their common appellant’s may have,
Whatever merit the contention we do not believe the trial ruling prejudicial court’s that, appellant. immediately The record reveals preceding comment, objected defense counsel argued: had "I you will like to tell what the Supreme Court say has testimony about identification in a case like this. I quoting am from Supreme now a case from the —
Court, Wade, No, United vs. I except States think it is United States vs. Wade.
'The compelled confrontation the State be- tween the accused or and the victim witnesses to a peculiarly crime elicit identification evidence is riddled with dangers innumerable and variable seriously, factors which might crucially, even degrade eye from a fair trial. The vulgarities of witness identification are well known. The annals of criminal ripe law are with instances of mistaken identification. said,
Mr. Justice Frankfurter once is the "What worth of testimony, identification even when *22 strangers uncontradicted, the identification such testi- untrustworthy. The hazards of verbally by a formal number mony are established American English and in the record of instances ’” history.” regarding mis- striving to make was point The that counsel Thus, broad discretion given the identity was made. taken area, no abuse. we see judge has this the trial
7. erred in judge the trial Next, contends that appellant separate on two a mistrial made motion for granting his former appellant’s to the was mаde when reference occasions trial previous to a that reference argues The appellant trial. conviction, although prior to a as reference prejudicial is as any authority proposi- for this to cite we that he failed note Creel, in testimony witness of State’s During tion. seeking a by prosecutor asked response question to a robbers, the two worn one of of a coat characterization Creel stated: said, I it trial, last time
"I remember last was safari coat.” moved for a timely objection and
The made a appellant any did not see that he judge The trial commented mistrial. the motion. and denied prejudice appellant to the during prosecutor’s further asserts that proceeding.” "prior reference to a closing argument, he made 2c, con- find this second under issue we As discussed herein prosecu- It to us that without merit. is clear tention to be testimony being trial attacking appellant’s tor was evidence and having heard the State’s manufactured after Accordingly, proceeding. referring previous was not to the denying his discretion judge the trial did not abuse basis. mistrial on this inadvertently that Creel ground,
As to the first it is clear say "last himself to immediately corrected stated "trial” but may conveyed time.” While well this have the fact of a previ- ous trial we jury, any do not believe error neces- trial; sarily prejudicial to the appellant’s right to a fair certainly concluding warrant judge not to the trial abused in denying his discretion the motion for a mistrial. Wilhelm, As supra, we stated in Md. at 326 A.2d 724:
" '[T]he
occurrence
improper
mere
of
remarks does
not
itself constitute reversiblе error. There must
be an
element
additional
for this conclusion to be
say
reached. If we cannot
argu
assailed
ment constituted "a material
factor in the con
viction”;
have
must
resulted
"substantial
prejudice to the accused” or that "the verdict would
have
had
improper
been different
closing argu
* * * ”,
ment not
made
we
been
then must necessar
ily
prejudicial
that no
error
conclude
resulted from
”
argument.’
Mackins,
v.
(Quoting People
17 Ill.
(1974);
App. 3d
8. While involving has raised several issues the sentencing proceeding general and a attack on constitutionality Maryland’s Capital Punishment Stat- ute, we need address in light these issues of the conclu- sion reached in our discussion of part above.
Nevertheless, por- we deem it to appropriate comment on tions of prosecutor’s In closing argument. opinion our I, clearly Poole supra, expressed respect we our views with to argument jury counsel’s to the concerning appellate review of a death sentence. We said:
"Such
jury’s
comments have no
relevance
duty
determining
the existence of the various
factors,
aggravating
mitigating
deciding
whether,
factors,
upon balancing
these
death sen-
rather,
they
tence should
imposed;
be
tend to
encourage
part
to believe that it can shift
responsibility
of its
body.
another
We view such
arguments
improper.”
In prosecutor the instant while the refrained from making specifically comments concerning automatic and mandatory appellate penalty review where the death imposed, he did make several comments with reference to the possibility parole, such as:
"And they prove? what did That Mr. Poole is an inmate, likely ideal get jail who is out of faster alive, than anybody else that he —.” does ever An objection again: was sustained. And
"Is the revolving jail, door parole, jail, parole, jail, parole going protect you and —.” The court again objection. sustained an Yet again pros- ecutor said:
"Will a protect life sentence us from Mr. Poole? Can *24 you sure, be can you your be sure in own minds that that silver someday Cadillac won’t be gliding quietly in night in someone’s residential com- munity again with Mr. Poole in it?” Objection to this statement pros- was overruled. Later the argued: ecutor
"I think a life only sentence in this case would send Mr. Poole back to laughing, laughing Baltimore this proceeding, knowing only that he has to bide wait, his All inmate, time. he has to good do is be a do everything he has to do.”
An objection was sustained. While the judge trial denied a mistrial, motion for a the appellant an appropriate refused instruction jury, to the stating pertinent part, "it is our belief that an instruction prejudice could not cure the ere- by Prosecutor’s remark and an
ated instruction would only enlarge jury’s this area in the mind and we are not requesting a point.” curative instruction at this view,
In our
possibility
reference to the
of
parole
future
and,
remand,
improper
upon
again
should not
be made.
We
previously
have
addressed the
propriety
issue of the
of
prosecutor
commenting
possibility
on the
parole
and
clearly held that
such comments are improper. See
(1962).
State,
Shoemaker v.
228 Md.
"The statements with regard parole in the here, think, context in they which were made we permissible exceeded the limits of by comment prosecutor. occasion, This Court has never had informed, far as we are question to consider the relating possible whether remarks parole, or sim- remarks, ilar constituted reversible error. Of course, each depends good case deal on its own facts, even may where the remarks fall into the general same pros- classification. References ecutor to right of appeal, possibility have, executive clemency parole of a defendant however, been by many considered other courts. Although there think way, are decisions each we reasoning the better weight of author- ity against are the propriety arguments. of such One in support reason of what think we is the better rule is that arguments should upon be based evidence, but principal objection arguments type goes this even deeper exemplified, and is we think, in the present case.
The chief vice of the
reference
this
to the
case
possibility of parole is that it suggested
might
that it
in part
responsibility
shift its
for a
*25
finding of the
guilt
body.”
defendant’s
to some other
(numerous
Id.,
468-69,
In the instant duty disregard its to determine jury to allow the factors, then balance one mitigating and to aggravating and (1957, Repl. required the other as Code against 27, 413, Vol.), imposing penalty. § the death Article before parole simply of as such Any possibility consideration of the obviously we cannot condone prejudicial; is irrelevant and argument. such felony of as to murder
Judgments handgun in Horad and as to use reversed; crime of violence judgments premeditated as to MacLarty and as to murder оf weapon robbery dangerous with a afñrmed, imposition except as sentence; death sentence death remanded to vacated and case County Circuit Court for Charles sentencing proceeding new for a 413; 27, § party under Art. each pay own costs. J., dissenting part: part
Murphy, concurring C. agree majority opinion I with of the which part degree premeditated affirms Poole’s conviction for the first MacLarty. agree murder of Dr. I also with that part State, majority opinion Campbell which that under v. holds 438, 444 (1982), 293 Md. A.2d 1034 Poole’sconviction for the I felony accomplice murder of his Horad must be reversed. do however, agree, felony that the erroneous murder con killing requires viction of Poole that the Horad murdering sentence imposed of death on Poole for Dr. MacLarty must be vacated and the case remanded for a new capital sentencing hearing. acknowledges properly Court "that
instructed that sen- it was to determine whether death imposed only regard Poole] tence should be [upon *26 198 degree premeditated MacLarty.”
first
murder of
The Court
speculates
nevertheless
that even
it
Dr.
though
was
MacLarty,
Horad,
and not Poole who shot and killed
"the
jury’s knowledge
liability
of Poole for Horad’s death
may
prejudicial
appellant.”
have been
The Court
upon
builds
speculation
this
with the further statement that
"we cannot be
sure
consideration of the now vacated
jury
weighing
conviction did not
influence the
mitigating
against
aggravating
circumstances
circum-
reaching
stance and in
its determination to impose the death
State,
penalty.”
majority
Dorsey
concludes that under
v.
(1976),
276 Md.
"(1) Whether the sentence of imposed death was under passion, prejudice, any the influence of or factor; arbitrary other
(2) Whether the supports jury’s evidence or finding statutory court’s of a aggravating circum- 413(d); § stance under
(3) supports jury’s Whether the evidence or court’s that the finding aggravating circumstances circumstances; are outweighed by mitigating (4) ....”
A total of ten aggravating provided circumstances is 10) (d), § under one of which that the (subparagraph guilty degree defendant was a first in a murder principal during robbery. only committed the course of a This was the found, aggravating jury possibly circumstance which the or (9) found, could have to exist in Subparagraph this case. (d) § 413 aggravating lists as an factor that the "defendant committed than more one offense of murder the first degree arising out of the same incident.” Poole’s invalid con- felony viction for the murder of Horad was a conviction for judge expressly the trial degree. first However murder law” that it "must find as a matter of jury instructed factor, aggravating eight as well as other aggravating this (d), § in this case. The present in 413 were not factors listed these nine factors. to the existence of jury answered "no” as only properly further instructed Because the a reasonable beyond that it found any aggravating factor *27 exist, any weighed against was to be doubt to i.e. number jury by preponderance, it found a mitigating factors that killing was conviction for Horad’s consideration of Poole’s binding weighing process under excluded from the part on the of the Accordingly, instructions. there is no error predicate on a reversal of Poole’s sen- trial court which to MacLarty’s By reversing, majority for murder. tence appellate one of review principles violates the cardinal Powers, by Judge which was well the late Jerrold V. stated Co., writing App. 32 Md. for the court in Braun v. Ford Motor 545, 548, (1976), A.2d 564 when he said: 363 principle practice
We know of no or under which may or judgment a of a trial court be reversed except prejudicial modified error appeal on by judge. committed the trial It is a misuse of lan- guage any by to act label as error act or failure witness, by party, attorney, juror, anyone a an a a or words, judge. else other In other error a than by may only judge, trial court be committed instances, rules, or, only when he in rare fails to rule, him in the course question on a raised before trial, post-trial proceedings. of a or pre-trial or by Appellate only rulings look made courts judge, trial or to his failure to act when action was required, to find reversible error. § eight categories mitigating (g),
Under there are 1) circumstances, is that the (subparagraph one of which previously defendant has been convicted of a crime violence, robbery. Poole and the defined therein include hearing that Poole stipulated during sentencing State offenses; hence, he prior robbery had been convicted of two could in no event receive the benefit mitigating cir- previously cumstance that he had not been convicted of com- mitting a crime of violence. Contrary to the suggestion made majority in the opinion, neither the prоsecution nor the any court made reference during sentencing hearing to Poole’s conviction for the murder of Horad. jury
The found three mitigating circumstances to exist:
"(1) subject The a good prisoner while incar- by cerated and abided the rules and regulations of housed; the institutions in which he was (2) subject The tried to better pre- himself and pare education; for his future furthering his
(3) subject volunteered his time to work with delinquent children in an attempt to rehabilitate them.” (h) §
Under required this case was weigh aggravating the one circumstance that Poole had committed premeditated MacLarty murder of during the course of an robbery against armed mitigating circumstances that *28 Poole was a good prisoner by and during abided the rules his incarceration; that he tried to better himself and prepare for education; his through future and that he volunteered "his time” to delinquent work with children. Our function under (e) (3) § 414 is to determine whether the supported evidence jury’s the determination that mitigating the circumstances did not outweigh aggravating jury circumstance. For the to have concluded that a cold-blooded premeditated murder was an aggravating circumstance which outweighed was not by the piddling mitigating circumstances found to exist entirely this case is an jury rational judgment. majority’s concern that Poole’s erroneous conviction may jury have influenced the weighing "in the mitigating circumstances against the aggravating circumstance” is wholly It jury unwarranted. assumes that the ignored the court’s concededly proper and, instructions in disregard of statutory formulation, either weight added extra circumstance, one aggravating or somehow considered the erroneous conviction as a nеgative reducing factor weight mitigating accorded to the circumstances. I am unwilling to engage drawing of such rank case, assumptions, penalty even in a death where it is so plain that the did not take the erroneous conviction into any way account in justification as a for imposing the death penalty upon Poole. I therefore conclude that capital a new sentencing hearing granted. should not be
Judges Smith and Rodowsky authorize me to state that they join in the expressed views herein.
Davidson, J., concurring dissenting: and
I agree majority with the that the convictions of the appel- lant, Timothy Clyde (accused), Poole felony for the murder co-felon, Horad, of his Steven Scott and the use of a handgun in a crime of violence must be I join reversed. therefore in the expressed views in that portion part opinion of the reach that conclusion. I further agree with the majority that the death penalty imposed for the accused’s conviction for premeditated murder of David C. MacLarty must be vacated both jury’s because of the improper consideration of the accused’s conviction felony for the murder of Horad and because of prosecutor’s improper possi- comments on the bility parole. I join in therefore the views expressed part 8 and that portion of part 1 that reach that conclusion. How- ever, I join cannot in part 2 b of opinion I because do not agree that the accused’s convictions for the murder of MacLarty robbery and for dangerous with a weapon should be my view, affirmed. In both convictions should also be reversed because of improрer an comment made pros- ecutor improperly impeached credibility only witness, defense’s alibi thereby prejudiced the accused deprived him of a impartial fair and trial. Accordingly, extent, to this I respectfully dissent. Under *29 circumstances, these I do not reach the other issues addressed in opinion.
The record here shows that during closing argument defense objected to, counsel among things, other a comment prosecutor indicating
made that Yvonne Bethea Mitchell, witness, only the defense’s alibi had not volun- particularly, teered to take a lie detector test. More the rec- ord shows as follows: [prosecutor]:
"MR. ANDERS ... "Enough just about the State’s case. I would like you briefly to review with the Defense’s case as you I presented you agree to and think will with me that the sum total of the Defense Mr. is Poole time, girlfriend, his Yvonne Bethea at that Mitchell today. is, course,
"And the Defense alibi. An alibi defense. testimony
"All her right, was that Mr. Poole was and, course, else, night long everything there all there, by, no one else came no one was no else one house, put else can him in the just girlfriend. his my point "And in asking her where she was last year, before, memory a month or so was her to test and perhaps you yourselves to ask how difficult that sometimes, go to sit and all of a sudden to have to before, pick day, back and out a a month or so exactly you remember doing. what were "That doubly you task becomes hard when are looking pick day going provide out a that is an very, very alibi for a yours charged close friend of very, very with a crime. serious "Now, I don’t know if Yvonne is inten- Bethea tionally perjuring protect herself to Mr. Poole here honestly this сase or whether she that he believes day. there on that I don’t know. I don’t know *30 is, whether she point, point knows at this but the only point and the I was trying to make is very you sometimes it is difficult when are asked long after an event to recall back. important thing you always
"Another have for, to I you, you look know none of perhaps none of before, have on jury you ever sat a have never had an alibi defense before but one thing you have to for, always very key look it is important because defense, an alibi is what did the person do when they they only found out that were the witness that beyond any could establish doubt that Mr. Poole person was not the that committed these horrible crimes. you someone,
"If very had been with a close friend, relative, child, a spouse, specific a on a night and he was arrested and charged with two murders, asked, penalty in which the death I is think you would beat it to station police so me, fast to you got tell them he was with have wrong guy, else, here, go look for someone he was test, I will take a lie detector I anything, will do but never, never, she years passed that have crime, since gone this has ever police, ever told them anything, anything ever done other than to, all of a up sudden show in the at a prior court proceeding provide this alibi. something you consider,
"That is got have again very important piece puzzle.
"MR. McCARTHY attorney]: [defense We would enter strongest objection of two comments from Anders, Mr. Your Honor. Move for a mistrial on both.
"First, he has referred to Yvonne Bethea police Mitchell’s refusal to contact the and take a lie totally detector test. We believe inappropriate grounds for mistrial.
"MR. ANDERS: ... to, mistrial,
"As to the other for I motion men- a I polygraph, referring tioned was to what another they might individual do if had been a witness to a crime, not that this witness should have done that. I
"MR. MCCARTHY: don’t think Mr. Anders’ I question, intent is the think it fact of is the his on jury. words the deny
"THE COURT: I will the motion for intended, I mistrial. don’t think the remarks were they Bethea, give impression nor did the that Mrs. Mitchell, known now as Mrs. was offered and a lie refused detector test. any
"I don’t think that that has been prejudice to deny the Defendant in this case and will the added.) (Emphasis motion.” The majority despite concludes that prosecutor’s the refer- test, appellant ence to a lie detector "the denied a conclusion, fair In reaching majority trial.” this the relies upon majority three agrees factors. The with the trial court prosecutor’s that the comment that the alibi witness had not " to volunteered take a lie give [not] detector test 'did impression that.. . [had [but] Mitchell been] offered refused addition, [to a lie In majority take] detector test.’” "[t]he asserts that to reference Mitchell’s failure to take a lie test detector was not stated as an item standing isolated itself; rather, starkly by appeared along it with several other majority Finally, the could have taken.” actions the witness remedy most drastic sought the appellant notes "that to the than, an admonition example, available rather Indeed, according to the statement.” disregard Thus, on the sought too much.” "the majority, record, majority independent review of basis of its error here.” that there was "no reversible holds reference to majority prosecutor’s I that the agree with support an inference that alibi lie detectоr test did not a test, take, I offered, a also but refused witness had been of several only referred to as one agree that a test was agree I further could have taken. actions the witness jury. a instruction request the accused did not curative view, reference to a lie Nevertheless, prosecutor’s my deny the accused sufficiently prejudicial detector test was grant failure to Consequently, the trial court’s a fair trial. requires mistrial reversal. virtually every jurisdiction other Maryland,
In
as in
lie detector test
the results
question,
has considered the
*32
test,
willingness
taking
a
are inadmissible.1
fact
test,
to take an
unwillingness
or
or refusal
take a
principle
This
generally
offered test are also
inadmissible.2
see,
(1980);
217,
Kelley
298, 302-03,
State,
219-20
418 A.2d
Md.
1.
v.
288
1013,
(D.C.Cir. 1923); People v.
Frye
States,
1013-14
e.g.,
293 F.
v. United
430,
696, 699-700,
517-18,
Leone,
511,
N.Y.S.2d
N.E.2d
307
255
25 N.Y.2d
732,
(1969);
75, 78,
Brooks,
A.2d
Pa.
309
v.
454
Commonwealth
434-35
184-85,
(1973).
184,
see,
Dorsey,
539 P.2d
e.g.,
N.M.
v.
88
But
State
733-34
204,204-05
426, 453-56, 381
(1975);
Vitello, Mass.
v.
376
cf. Commonwealth
(1978).
582, 597-99
N.E.2d
are inadmissible
many jurisdictions
that test results
have held
Courts in
People Baynes,
Ill.2d
e.g.,
88
parties.
v.
upon stipulation
See.
even
39,
Frazier,
(1981);
239-40,
252 S.E.2d
225,
State v.
1079
applies person taking test, whether the a willing to take a test, or unwilling refusing or to take an offered test is a 3 witness or the accused.4 This principle applies also whether 5 the evidence referring presented by to a test is a witness or Similarly, аccused.6 a attorney comment made an opening closing or arguments referring may to a test properly jury.7 come before the prejudiced by
Whether the accused has been
a reference to
erroneously
a test
that has been
admitted or otherwise
jury, ordinarily
comes before the
depends upon the facts and
Maryland,
circumstances of the case.8 In
inas most other
jurisdictions
generally
it has
recognized
been
that when a
reference to the
erroneously
results of a test is
admitted or
jury,
otherwise reaches the
prejudiced.9
the accused is
More
particularly,
State,
Kelley
298,
v.
288 Md.
In
generally being
addition to references to test results
held
prejudicial, Maryland
inadmissible and
as in most
jurisdictions,
other
it
generally
recognized
has
been
test,
test,
when
taking
willingness
the fact of
to take a
or the
or
unwillingness
refusal to take an offered test is
erroneously
jury,
or
admitted
otherwise reaches the
prejudiced.10
particularly,
accused is
More
in State v.
Driver,
255,
(1962),
prosecutоr,
38 N.J.
"[T]o tell a of at the outset of the trial that defendant refused a number of times to a take lie detector test was to a probable create aura of prejudice permeate which would the proceeding Driver, 260-61, 183 very to the end.” 38 atN.J. A.2d at 658.
The rationale underlying courts’ conclusions that a refer- test, ence to the fact taking test, willingness to take a or unwillingness or refusal to take an offered test is prejudicial, is that such a an supports reference inference of what the test or results were would have been. Such an improperly inference bolsters or impeaches credibility because the test is unreliable. This rationale has been expressed in ways by different different courts. Kolander,
In
209,
State v.
236 Minn.
"There was
explanation
no
oper-
or
fact,
ation
effect of a lie detector. As a matter of
it was not even shown what
type
test defendant
had refused to
impact upon
submit
to. The
jurors
minds of the
of a refusal
to submit
778; Davis,
774; Edwards,
984-87;
P.2d at
v.
351 So.2d
People
at
412
at
A.2d
Welke,
164, 169,
759,
(1955); Kolander,
342 Mich.
68 N.W.2d
761
236
Minn,
Miss,
222,
465-66;
561,
Mattox,
at
52
at
N.W.2d
240
at
In State v. the accused had said that statement opening prosecutor test, that he had lie detector asked to take a been Supreme was made. objection refused. No repeatedly lie detector tests acknowledging that Jersey, New Court of to results be permit test sufficiently reliable were admitted, said: are not examinations polygraph
"If the results of fortiori, evidence, by a defen- refusal competent cannot be to submit to one dant in a criminal case tеstimony. degree In terms of subject made with average jury, unfamiliar prejudice, the tests, might uncertainty of the present scientific a defen- by proof of very well be more affected even by the evidence the test than dant’s refusal to take of its proof with coupled to him of results adverse regarded be might A refusal imperfection. scientific — guilt consciousness indicating why the Assistant here undoubtedly the reason in his it emphasis upon placed Prosecutor such Moreover, calculated his remarks were opening. that the mechanical by implying
prejudice
for the truth.
tests
device was the ultimate
circumstances,
"Under
regard
we
remarks
the opening
the lie
concerning
detector
test as possessing
capacity
such horrendous
prejudice against
the defendant as to constitute
262,
plain
Driver,
261,
error.”
In
State,
1953),
Kaminski v.
’’When the trial allowed the to judge evidence be admitted, and by sanctioned the submission the made, statement he are we of the view that he committed as an if egregious error as he had admitted the of the have results test to been objection. received evidence over there For can be no doubt that in initiating the the inquiry prosecu- tor intended to the jurors leаve in minds of the the impression that the because witness Newbold had voluntarily submitted to a lie prior detector test to the time of veracity trial he a man was of and hence telling stand, the from truth the witness no how matter inconsistent his tale might appear to be jurors to the compared testimony when with the by offered other State witnesses. logically
"Can it argued be of the putting the questions and the allowance of the under answers the circumstances prevailing at the trial did not have a direct profound tendency to influence or prejudice jurors the the against minds of the defen- that when be clearer than anything Can dants? the witness to cross-examine failed defense counsel test, the court had the after to the results of as to him in open be that course would announced that on,’ impression an test was respect to 'what the the jurors of the minds implanted have been must test had been lie detector result of the the or else the cause of defendants unfavorable to the have been made? inquiry would in the place to the defendants "It was not fair their required peril entrapped position that them nature inquiry of pursue either to as by the of or to be damned adverse results the test naturally expected be to impressions which would practical to do effect flow from their failure so. by fortified testimony, as of admission judge when he overruled the remarks the trial allow, inference, by the admission objection, was to not have been damaging evidence would directly. it legally admissible had been submitted In whole case a situation where State’s testimony of witness depended entirely upon seriously havе been credibility appears whose but only by shaken not cross-examination evi- well, given by dence other State’s witnesses in this placed defendants should not have been position. intolerable or defen- guilt
"Whatever the
innocence
be,
may
prove
can be no
ultimately
dants
there
they
escape from the fact that at the trial
were
of innocence with which
presumption
entitled
*37
persons
the law
all
accused of crime until
clothes
by legally
proven guilty beyond a reasonable doubt
attempt by
the
competent evidence.
successful
implant
prosecution by
employed
the means
jury the
that because
impression
the minds of the
to a lie
voluntarily
the witness had
submitted
test
tes-
prior
perforce
detector
to trial he must
be
trial, resulted,
tifying truthfully in the course of the
effect,
device,
in the substitution of a mechanical
opportunity
cross-examination,
without fair
for
time-tested,
time-tried,
the
and time-honored
judgment
jury
discretion of the
of a
as to matters of
(addi-
Kaminski,
credibility.”
I recognize objected the reference to here did not involve the or unwillingness refusal of the alibi witness Rather, take an offered test. prosecutor argu- the in closing ment, objection, over only stated that the alibi did witness not Nevertheless, volunteer to take a lie detector in my test. view, underlying general the rationale principle a results, test, reference to taking test fact of a willingness test, a unwillingness to take or the or refusal to test, take an offered and prejudicial, inadmissible dictates the result here. majority,
Unlike the I any do not discern dif- meaningful ference between a reference to an unwillingness or refusal to test, take an offered lie detector and failure to volunteer to Here, take a test. the alibi witness’s failure to volunteer take a test an supports inference that her reason for not volunteering Thus, was that she would have failed a test. her test, failure to volunteer to take like the unwillingness or test, refusal to take supported an offered an inference of what the test results would have been. Because the test is unreliable, an such improperly impeached inference alibi view, witness’s credibility. my Accordingly, pros- ecutor’s improperly reference came before the prejudiced. accused was
Moreover, I agree that, do not with majority because isolated, reference to the lie detector test was not but rather was stated as one of several actions the could witness taken, have prejudicial. reference was context, its Notwithstanding the reference to the wit- alibi
213 sup- nonetheless take a test to to volunteer failure ness’s Thus, lying. was witness the alibi an inference ported credibility and her impeached improperly the reference the accused. prejudiced the circum I find that under majority,
Finally,
the
unlike
request
to
a
case,
the accused
failure of
the
stances of this
mistrial,
immaterial.
instruction,
than a
rather
curative
895,
195,
at
at
141 A.2d
Lusby, 217 Md.
that in
recognize
I
resulting from
the prejudice
acknowledged
this Court
willingness
a
witness’s
prosecuting
reference to
improper
an
by a curative
сould be obviated
test
to take a lie detector
There,
prosecuting
the trial court.11
from
instruction
as to
prosecutor
from the
witness,
question
response
in
to
tests,
sir,
"Yes
a lie
any
replied,
given
been
whether she had
objec
194,
at 895. An
at
141 A.2d
Lusby, 217 Md.
detector.”
immediately
sustained,
the trial court
tion was
Court
the answer. This
disregard
jury
instructed the
action of
prompt
"the
those circumstances
found that under
the answer
jury
disregard
Gray,
instructing
Judge
defendant
right of the
fully satisfied the
prosecutrix,
Lusby,
195,
When all is said and referred to emerges prosecutor from this record is that the That to volunteer to take a test. the alibi witness’s failure for not reference inference that her reason supported an test, and would have failed the volunteering was that she results inference of what the test supported therefore an impeached improperly would have been. Such an inference credibility. the alibi witness’s
The central core of the accused’s defense was an alibi. dependent upon success of that alibi defense was credibility Under the circumstances of the alibi witness. here, beyond I reasonable doubt cannot declare a belief improper impeachment of the alibi witness’s credibility jury’s Accordingly, verdicts. did not influence the 14, 18, 231, (1973); Clark, Hylton v. v. Rolfe v. 269 Md. 304 A.2d 233 12. 656, (1972); Mayor Baltimore, 266, 279, Parish 268 Md. 300 A.2d 662 24, 82, Maryland Ass’n, Virginia & Milk 250 Md. 242 A.2d Producers (1971); (1968), denied, 940, 92 544 opers, Devel cert. 404 U.S. S.Ct. 280 Shoreham Hills, Inc., 267, 277-78, Randolph A.2d Inc. v. 248 Md. (1967). I would reverse the accused’s convictions for the murder of MacLarty, and robbery with a dangerous weapon, would remand for a new trial.
Judge Cole authorizes me to state that joins he in the expressed views herein.