Robert Allen SMITH v. STATE of Maryland.
No. 64, Sept. Term, 2000.
Court of Appeals of Maryland.
Dec. 20, 2001.
787 A.2d 152
M. Jennifer Landis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.
RAKER, Judge.
Robert Allen Smith, petitioner, asserts that his federal and state constitutional right against self-incrimination was violated by the prosecutor‘s comments during closing argument. We agree and shall hold that the prosecutor‘s remarks were a direct comment on petitioner‘s exercise of his privilege against self-incrimination. The error was not harmless, and a new trial is therefore in order.
In March, 1998, the home of Mr. and Mrs. Davis was burglarized and several items of property taken. The missing items included: a twenty-two caliber revolver, a shotgun, jewelry, coins, four women‘s leather jackets, two men‘s leather jackets, and a рair of leather chaps. On the basement stairs, the police found a shoe print of a person‘s boot; they found a similar print on a shirt left in the bathroom.
On March 4, 1998, Ridgely police officer Phil Dixon spoke with a person who told him that Smith offered to sell a twenty-two caliber revolver that matched the description of the gun stolen from the Davis’ home. Based on this information, the police secured a search and seizure warrant for Smith‘s home. They found no evidence linking him to the burglary. On March 9, 1998, Officer Dixon interviewed Denise Brown, who told him that she purchased a leather jacket from Smith for twenty dollars. Ms. Brown also said that Smith showed some leather clothing to Richard Greenwood. The police contacted Greenwood, and he told them that he bought a men‘s leather jacket and leather chaps from Smith. The police then showed the leather clothing to Mr. and Mrs. Davis, who identified it as their property. The police also compared Smith‘s shoes to the print found at the Davis’ home and concluded that it was “an exact match or a near exact match.” Smith was arrested. While he was in jail, he telephoned Arkendra Candi. Candi testified at trial that Smith asked her to telephone Denise Brown and offer her a bribe to
Petitioner was tried in the Circuit Court for Caroline County before a jury on charges of first degree burglary, conspiracy to obstruct justice, malicious destruction of property, and four counts of theft. Petitioner did not testify and presented no evidence on his behalf. The prosecutor argued in closing argument that:
“The Judge has said that you can look backwards in this case. Look to see who ends up with the property and then you can work backwards and here if the recent unexplained possession of stolen property allows you to work backwards to conclude, hey, this guy was the thief, this guy was the burglar. In making that conclusion, ask yourself this. What explanation has been given to us by the defendant for having the leather goods? Zero, none.”
The defense objected to the last comment, but the trial court, before the jury, overruled defense counsel‘s objection, stating: “I think that‘s a comment on the evidence. Overruled. I think he was as much referring to any explanation to the police.”
Smith was convicted by the jury on all counts and sentenced to a term of incarceration. In an unreported opinion, the Court of Special Appeals affirmed. The intermediate appellate court found that “the prosecutor‘s remarks in closing concerned the lack of evidence to explain, on some legitimate basis, appellant‘s possession of the Davises’ leather clothing and did not concern appellant‘s failure to testify.” Rejecting Smith‘s argument that the prosecutor commented on his failure to testify, the court reasoned that the prosecutor‘s comments merely “served to highlight that none of the witnesses who testified at trial could refute or explain the fact that, soon after the burglary, appellant was seen in possession of the Davises’ missing leather goods.” We granted Smith‘s petition for a writ of certiorari.1 See Smith v. State, 360 Md. 485, 759 A.2d 230 (2000).
We begin with a brief discussion of the privilege against self-incrimination. It has long been the law in Maryland that a defendant in a criminal trial need not testify. Comment upon a defendant‘s failure to testify in a criminal trial was prohibited in Maryland before the United States Supreme Court, in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d. 106 (1965), held that the federal constitutional right agаinst compelled self-incrimination prohibits prosecutorial comment on the accused‘s silence or failure to testify. See e.g., Woodson v. State, 325 Md. 251, 265, 600 A.2d 420, 426 (1992) (citing Barber v. State, 191 Md. 555, 62 A.2d 616 (1948); King v. State, 190 Md. 361, 58 A.2d 663 (1948); Smith v. State, 169 Md. 474, 182 A. 287 (1936)). Today, the privilege against self-incrimination is protected by the
Despite our long history of protecting defendants’ right not to testify, a prosecutor may summarize the evidence and comment on its qualitative and quantitative significance. See Wilhelm v. State, 272 Md. 404, 412-13, 326 A.2d 707, 714 (1974). In closing argument, lawyers have wide latitude to draw reasonable inferences from the evidence, and discuss the nature, extent, and character of the evidence. See Ware v. State, 360 Md. 650, 681-82, 759 A.2d 764, 780 (2000); Degren v. State, 352 Md. 400, 429-30, 722 A.2d 887, 901 (1999).
In evaluating whether a prosecutor‘s comments are improper, this Court long ago set forth the following test: is the remark “susceptible of the inferenсe by the jury that they were to consider the silence of the traverser in the face of the accusation of the prosecuting witness as an indication of his guilt.” Smith v. State, 169 Md. 474, 476, 182 A. 287, 288 (1936) (emphasis added).5 In Smith, a trial for bastardy, the
“There can be no question of the impropriety of this remark, as it was susceptible of the inference by the jury that they were to consider the silence of the traverser in the face of the accusation of the prosecuting witness as an indication of his guilt. The constitutional provision [Declaration of Rights, art. 22] is ‘that no man ought to be compelled to give evidence against himself in a criminal case,’ but the statutory law enlarges this privilege by declaring: ‘In the trial of all indictments, complaints and other proceedings against persons charged with the commission of crimes and offense * * * the person so charged shall at his own request, but not otherwise, be deemed a competent witness; but the neglect or refusal of any such person to testify shall not create any presumption against him.’ ”
Maryland is not alone in adopting a test that is highly protective of a defendant‘s ability to exercise his Fifth Amend-
“We prefer the test which does not in such an obvious fashion place the burden on the accused to show that the jury necessarily took the comment to be related to his failure to take the stand. A morе reasonable test, in our opinion, was stated in Williams v. Wainwright, 416 F.2d 1042 (5th Cir.1969), where the court stated that it is settled in both Federal and Florida law that:
A comment made by the prosecuting attorney, directly or indirectly which is subject to interpretation by a jury as a comment upon failure of a defendant to testify has been strictly regarded as an impingement on the substantial right of the defendant.”
Id. at 648. See also Moore v. Indiana, 669 N.E.2d 733 (1996) (recounting the history of the no-comment rule, adhering to the Rowley decision, and rejecting Morrison-Knowles).
Likewise, the Commonwealth of Massachusetts applies a test similar to the Maryland test as set out in Smith: irrespective of the prosecutor‘s intent, the test is whether the remarks were reasonably susceptible of being interpreted as a comment on the defendant‘s failure to take the witness stand. See Commonwealth v. Smith, 387 Mass. 900, 444 N.E.2d 374, 381 (1983).
Florida also has adopted the “fairly susceptible” test and sрecifically rejected the “naturally and necessarily” test. When asked by the State to abandon the “fairly susceptible” test, the Supreme Court of Florida held that “the fairly susceptible test offers more protection to defendants than does the federal test, and we decline the state‘s invitation to adopt the latter [for purposes of the state constitution].” State v. Kinchen, 490 So. 2d 21, 22 (Fla.1985); Rodriguez v. State, 753 So. 2d 29, 37 (Fla.2000) (“The ‘fairly susceptible’ test is a very ‘liberal rule.’ “). In Trafficante v. State, 92 So. 2d 811 (Fla.1957), the Supreme Court of Florida stated:
“[O]ur law prohibits any comment to be made, directly or indirectly, upon the failure of the defendant to testify. This is true without regard to the character of the comment, or the motive or intent with which it is made, if such comment is subject to an interpretation which would bring it within
the statutory prohibition and regardless of its susceptibility to a different construction.”
Id. at 814 (emphasis added).
In keeping with the test established in Smith, this Court has viewed references to а defendant‘s failure to testify as violative of a defendant‘s
“For comment on the refusal to testify is a remnant of the ‘inquisitorial system of criminal justice’ which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. It is said, however, that the inference of guilt for failure to testify as to facts peculiarly within the accused‘s knowledge is in any event natural and irresistible, and that comment on the failure does not magnify that inference into a penаlty for asserting a constitutional privilege. What the jury may infer, given no help from the court is one thing. What it may infer when the court solemnizes the silence of the accused into evidence against him is quite another.”
380 U.S. at 614, 85 S.Ct. at 1232-1233, 14 L.Ed.2d 106 (citations omitted).
In the instant case, the prosecutor‘s remarks to the jury, “what explanation has been given to us by the Defendant,” and his answer, “zero, none,” referred to the defendant‘s decision to exercise his constitutionally afforded right to remain silent. The prosecutor did not suggest that his comments were directed towards the defense‘s failure to present witnesses or evidence; rather, the prosecutor referred to the failure of the defendant alone to provide an explanation. The prosecutor‘s comments were therefore susceptible of the inferencе by the jury that it was to consider the silence of the defendant as an indication of his guilt, and, as such, the comments clearly constituted error.
We recognize that prosecutors and judges are permitted to argue or comment that the unexplained possession of recently stolen goods permits the inference that the possessor was the thief. See, e.g., Grant v. State, 318 Md. 672, 680, 569 A.2d 1237, 1241 (1990); Brewer v. Mele, 267 Md. 437, 449, 298 A.2d 156, 164 (1972); Cason v. State, 230 Md. 356, 358, 187 A.2d 103, 104 (1963); Stapf v. State, 230 Md. 106, 108, 185 A.2d 496, 497 (1962); Lewis v. State, 225 Md. 474, 475-76, 171 A.2d 244, 245 (1961); Glaros v. State, 223 Md. 272, 280, 164 A.2d 461, 466 (1960); Felkner v. State, 218 Md. 300, 305, 146 A.2d 424, 428 (1958); Debinski v. State, 194 Md. 355, 360, 71 A.2d 460, 462 (1950). A majority of courts have held that prosecutors may comment on the uncontradicted nature of the prosecution‘s evidence unless the only person who could have contradicted, denied,7 rebutted or disputed the evidence was
On the basis of the foregoing, we find that the prosecutor‘s comments were impermissible. Our inquiry, however, is not at an end. We must address whether the error was harmless. While not every impermissible comment by the prosecutor constitutes reversible error, the State bears the burden of proving that an error is harmless. The State must prove beyond a reasonable doubt that the contested error did not contribute to the verdict. See Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976).
Petitioner maintains that he was prejudiced by the prosecutor‘s comments. He also argues that, by overruling defense counsel‘s objection before the jury and advising the jury that the comment was permissible, the court gave its imprimatur to the prosecutor‘s insinuation that the jury should penalize Smith for not testifying. See Good v. State, 723 S.W.2d 734, 738 (Tex.Cr.App.1986) (stating that that a trial court, by overruling an objection to an improper argument, puts “the stamp of judicial approval” on the improper comments, thus magnifying the possibility for harm).
The State‘s argument impermissibly commented on appellant‘s failure to testify. We cannot conclude beyond a reasonable doubt the improper comment did not contribute to the guilty verdict.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR CAROLINE COUNTY AND TO REMAND THE CASE TO THAT COURT FOR A NEW TRIAL. COSTS TO BE PAID IN THIS COURT AND THE COURT OF SPECIAL APPEALS BY CAROLINE COUNTY.
BATTAGLIA, Judge, concurring.
While I concur with the majority‘s holding — that the prosecutor‘s comment impinged on the defendant‘s constitutional right against self-incrimination, and further, that such error was not harmless — I write separately because I believe that the degree of authority with which the majority cloaks the 1936 casе of Smith v. State, 169 Md. 474, 182 A. 287 (1936), is unsubstantiated by subsequent case law in this Court. Likewise, the case at hand presented this Court with the opportunity to definitively articulate a standard under which prosecutors are confined to operating, and to which courts may look in effectively determining whether a defendant‘s constitutional rights have been infringed; an opportunity upon which, I believe, the majority has failed to capitalize.
The privilege against self-incrimination has historically ensured the integrity of the fundamental premise of our criminal
reflects many of our fundamental values and most noble aspirations: . . . our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load; our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes “a shelter to the guilty,” is often “a protection to the innocent.”
Murphy v. Waterfront Comm‘n of New York Harbor, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596-97, 12 L.Ed.2d 678, 681-82 (1964) (internal citations and some quotations omitted).
In the same year the Supreme Court held the
The standard, unanimously adopted in all federal circuits, for ascertaining when a prosecutor‘s argument constitutes improper comment on a defendant‘s exercise of his Fifth Amendment right to remain silent is whether the language used manifestly intended to be a comment on the failure of the accused to testify, or whether the language was of such character that the jury would naturally and necessarily take it to be such a comment. See e.g., United States v. Roberts, 119 F.3d 1006, 1015 (1st Cir.1997); United States v. Pitre, 960 F.2d 1112, 1124 (2nd Cir.1992); Lesko v. Lehman, 925 F.2d 1527, 1544 (3rd Cir.1991), cert. denied, 502 U.S. 898, 112 S.Ct. 273, 116 L.Ed.2d 226 (1991); United States v. Francis, 82 F.3d 77, 78 (4th Cir.1996), cert. denied, 517 U.S. 1250, 116 S.Ct. 2513, 135 L.Ed.2d 202 (1996); United States v. Lampton, 158 F.3d 251, 260 (5th Cir.1998), cert. denied, 525 U.S. 1183, 119 S.Ct. 1124, 143 L.Ed.2d 119 (1999); United States v. Bond, 22 F.3d 662, 669 (6th Cir.1994); United States v. Cotnam, 88 F.3d 487, 497 (7th Cir.1996), cert. denied, 519 U.S. 942, 117 S.Ct. 326, 136 L.Ed.2d 240 (1996); United States v. Jackson, 64 F.3d 1213, 1218 (8th Cir.1995), cert. denied, 516 U.S. 1137, 116 S.Ct. 966, 133 L.Ed.2d 887 (1996); United States v. Atcheson, 94 F.3d 1237, 1246 (9th Cir.1996), cert. denied, 519 U.S. 1156, 117 S.Ct. 1096, 137 L.Ed.2d 229 (1997); United
This test is also used by nearly every state court in resolving claims of improper prosecutorial comment on the defendant‘s failure to testify.1 See e.g. Ex Parte Kenneth Loggins, 771 So.2d 1093, 1101 (Ala.2000); State v. Bracy, 145 Ariz. 520, 703 P.2d 464, 479 (1985) cert. denied, 474 U.S. 1110, 106 S.Ct. 898, 88 L.Ed.2d 932 (1986); State v. Lemon, 248 Conn. 652, 731 A.2d 271, 277 (1999); Shelton v. State, 744 A.2d 465, 502 (Del.1999) cert. denied, 530 U.S. 1218, 120 S.Ct. 2225, 147 L.Ed.2d 256 (2000); Bowman v. United States, 652 A.2d 64, 72 (D.C.1994); LeMay v. State, 265 Ga. 73, 453 S.E.2d 737, 739-40 (1995); State v. Melear, 63 Haw. 488, 630 P.2d 619, 626 (1981); People v. Neal, 111 Ill.2d 180, 95 Ill.Dec. 283, 489 N.E.2d 845, 857 (1985), cert. denied, 476 U.S. 1165, 106 S.Ct. 2292, 90 L.Ed.2d 733 (1986); Schertz v. State, 380 N.W.2d 404, 410 (Iowa 1985); State v. Ninci, 262 Kan. 21, 936 P.2d 1364, 1384 (1997); Bowling v. Commonwealth, 873 S.W.2d 175, 178 (Ky.1993), cert. denied, 513 U.S. 862, 115 S.Ct. 176, 130 L.Ed.2d 112 (1994); State v. Lindsey, 578 S.W.2d 903, 904 (Mo.1979); State v. Wiman, 236 Mont. 180, 769 P.2d 1200, 1203 (1989); Barron v. State, 105 Nev. 767, 783 P.2d 444, 451-52 (1989); State v. Merrill, 125 N.H. 479, 484 A.2d 1065 (1984); State v. Isiah, 109 N.M. 21, 781 P.2d 293, 296 (1989); State v. Skeels, 346 N.C. 147, 484 S.E.2d 390, 393 (1997); State v. Nordquist, 309 N.W.2d 109, 119 (N.D.1981); State v. Conway, 2 Or.App. 49, 465 P.2d 722, 723 (1970); Short v. State, 671 S.W.2d 888, 890 (Tex.Crim.App.1984); State v. Tucker, 709 P.2d 313, 315 (Utah 1985); State v. Zele, 168 Vt. 154, 716 A.2d 833, 838 (1998); Johnson v. Commonwealth, 236 Va. 48, 372 S.E.2d 134, 136 (1988); State v. Lindvig, 205 Wis.2d 100, 555 N.W.2d 197, 200 (Wis.App.1996); Stanton v. State, 692 P.2d 947, 950 (Wyo.1984).
Furthermore, while the State of Florida boasts that the “fairly susceptible” test is a “very liberal rule,” see Rodriguez, 753 So.2d at 37 (quoting State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla.1986)), upon surveying its application, it does not appear to be significantly more prohibitive of prosecutorial comments than the test applied in the majority of jurisdictions. In fact, the Florida court admits that “despite our repeated admonitions to avoid any comment that is ‘fairly susceptible’ to interpretation as a comment on silence, [we have] attempted to draw a distinction between impermissible comments on silence and permissible comments on the evidence in the case.” Id. at 37. The court also acknowledged other “narrow exceptions” to the rule against prosecutorial comments, including where the defendant has asserted a defense of alibi, self-defense, or defense of others, or where the prosecutor‘s comment was an “invited response,” a proper rebuttal to a defense attorney‘s statement. Id. at 38-39. That the minority test has been littered with exceptions and distinctions is arguably indicative of its unworkable nature. If the minority rule is more “liberal” at all, it is arguably not in the scoрe of its protections, but rather in the manipulation of its applicability.
I believe this test, employed overwhelmingly in courtrooms across the nation, is consistent with our unwavering protection of a defendant‘s rights as guaranteed by
Despite this Court‘s recent application of the nearly universal test in Oken, the majority prefers to resurrect a 1936 case, Smith v. State, 169 Md. 474, 182 A. 287 (1936), as the authoritative case in self-incrimination jurisprudence; unfortunately, such reliance lacks substantiation by subsequent case law in this Court. In the sixty-five years of its existence, Smith has been cited infrequently: rarely, in relation to self-incrimination issues as a whole, and never, until today, as the authoritative case or standard by which all self-incrimination questions should be measured. In Woodson v. State, 325 Md. 251, 265, 600 A.2d 420, 426 (1992), Booth v. State, 306 Md. 172, 227, 507 A.2d 1098, 1126 (1986) (Eldridge, J., dissenting), cert. granted, in part, 479 U.S. 882, 107 S.Ct. 269, 93 L.Ed.2d 246 (1986), and vacated, in part, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and Littreal v. Redwine, 252 Md. 662, 666, 250 A.2d 894, 896 (1969), this Court only cited Smith to support the assertion that prior to the Supreme Court‘s
While оur State can certainly take pride in its longstanding tradition of protecting a defendant‘s constitutional right against self-incrimination, I do not believe that this Court should now claim that our decision sixty-five years ago also provided a test by which courts have in the past, can in the present, and should in the future, determine whether a defendant‘s constitutional right was infringed. I find the fact that this Court neglected to apply Smith when determining whether the prosecutor‘s comments infringed on the defendant‘s constitutional right against self-incrimination in Oken v. State to be a valuable insight into the proper weight that should be
Again, while it is true that this Court has resolutely and consistently forbidden comment upon a defendant‘s failure to testify in a state criminal trial, see Veney, 251 Md. at 179, 246 A.2d at 620 (stating, “[i]t is clear that in Maryland comment upon a defendant‘s failure to testify in a state criminal trial was forbidden long prior to Griffin v. California . . .“) (internal citations omitted); Woodson, 325 Md. at 265, 600 A.2d at 426-427 (demonstrating that both the cases prior to and subsequent to Griffin in this State prohibited comments by prosecutors on a defendant‘s failure to testify); Oken, 343 Md. at 295, 681 A.2d at 49 (stating, “[t]o be sure, comments on a defendant‘s failure to testify violate the defendant‘s constitu-
It is particularly noteworthy that the “test” which this Court employs today is neither the “fairly susceptible” test, nor the “reasonably susceptible” test,5 but rather, simply the “susceptible” test. A “test” that encompasses everything “susceptible” is not, in my experience, the type of standard under which prosecutors and courts can effectively operate. Relegating self-incrimination jurisprudence to countless exercises of harmless error analysis is not an effective way to protect the rights of defendants.
The constitutional right against self-incrimination is a perennial guarantee assiduously guarded by the courts against violation. As articulated by the Supreme Court in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886):
“It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutionаl rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis. We have no doubt that the legislative body is actuated by the same motives; but the vast accumulation of public business brought before it sometimes prevents it, on a first presentation, from noticing objections which become developed by time and the practical application of the objectionable law.”
Id. at 635, 6 S.Ct. at 535, 29 L.Ed at 752 (emphasis added). A prosecutor‘s comments on a defendant‘s failure to testify are precisely the “stealthy encroachments” against which this Court is obligated to guard. In light of our legislature‘s explicit statutory guarantee to be free from adverse inferences, this Court‘s protection of a defendant‘s right to remain silent should be particularly vigorous. See