Lead Opinion
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 pair 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.
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 excplanation 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 excplain, 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 excplain 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.
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,
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,
In evaluating whether a prosecutor’s comments are improper, this Court long ago set forth the following test: is the remark “susceptible of the inference by the jury that they were to consider the silence of the traverser in the face of the accusatiоn of the prosecuting witness as an indication of his guilt.” Smith v. State,
“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.’ ”
Id.
Maryland is not alone in adopting a test that is highly protective of a defendant’s ability to exercise his Fifth Amendment right to remain silent.
“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 more reasonable test, in our opinion, was stated in Williams v. Wainwright,416 F.2d 1042 (5th Cir.1969), where thе 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,
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,
Florida also has adopted the “fairly susceptible” test and specifically rejected the “naturаlly 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,
“[0]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 a defendаnt’s failure to testify as violative of a defendant’s Article 22 and Fifth Amendment rights. In Griffin v. State, which addressed both the trial court’s jury instruction and the prosecutor’s comment on the defendant’s failure to testify, the United States Supreme Court explained the significance of the prohibition against the prosecution’s commenting on a defendant’s failure to testify:
“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 thаt inference into a penalty 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.”
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 thеrefore susceptible of the inference 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.
As is suggested above, we cannot conclude that the prosecutor’s comments merely addressed the lack of evidence to explain Smith’s possession of the leather goods. To so conclude would ignore the prosecutor’s explicit reference to the defendant and the insinuated duty of the defendant personally to offer an explanation for his possession of the property. The prosecutor’s comment went beyond any qualitative assessment of the evidence in that, when he asked the jury “what explanation has been given to us by the defendant,” he еffectively suggested that the defendant had an obligation to testify at trial. This burden-shifting is contrary to the basic tenets of our criminal justice system, an accusatorial system, where the question is whether the government has met its burden of proof. See Mitchell v. United States,
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,
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,
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,
In addition to effectively giving his imprimatur to the State’s comment on the defendant’s silence, the judge suggested that Smith had some obligation to explain his actions to the police. This Court explicitly has rejected the notion that one’s failure to explain events to the police may be construed as evidence of guilt. See Grier v. State,
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.
Notes
. The petition for writ of certiorari presented two questions:
"1) Did Fifth Amendment error occur when the prosecution was permitted to argue to the jury that еvidence must be explained' by the Defendant; and 2) Docs Maryland Rule 4-215(e) reasonably require the Court to advise a defendant of his 'right' to proceed pro se before forcing the defendant to proceed with unwanted counsel.”
Because we answer the first question in the affirmative, we do not reach the second question.
. The Fifth Amendment to the United States Constitution states, in pertinent part, that "[n]o person shall ... be compelled in any criminal case to be a witness against himself....”
. Article 22 of the Maryland Declaration of Rights provides as follows: "That no man ought to be compelled to give evidence against himself in a criminal case.”
. Maryland Code (1957, 1998 Repl.Vol., 2000 Cum.Supp.) § 9-107 of the Courts and Judicial Proceedings Article provides as follows:
"A person may not be compelled to testify in violation of his privilege against self-incrimination. The failure of a defendant to testify in a criminal proceeding on this basis does not create any presumption against him.”
. Notwithstanding that Smith v. State,
The concurring opinion's reliance on Oken v. State,
"We also agree with Judge Levitz that Oken's counsel was not ineffective in failing to object to the comments Oken claims infringed on his right to remain silent. We find that neither of the statements were a comment upon the failure of Petitioner to testify, nor did these statements violate Petitioner’s right to a fair trial. To be sure, comments on a defendant's failure to testify violate the defendant’s constitutional rights. See Griffin v. California,380 U.S. 609 , 615,85 S.Ct. 1229 , 1233,14 L.Ed.2d 106 , 110 (1965); Woodson v. State,325 Md. 251 , 265,600 A.2d 420 , 426 (1992). Reading the prosecutor’s closing argument in context, however, we do not believe the statements were comments on Petitioner’s right to remain silent. See King v. State,190 Md. 361 , 373-74,58 A.2d 663 , 668 (1948) (holding that statement that there was no evidence to refute the State’s case was not improper comment on defendant’s failure to testify) [citing Smith v. State,169 Md. 474 ,182 A. 287 (1936)]; State v. Ward,338 N.C. 64 ,449 S.E.2d 709 , 729 (1994) (holding proseсutor’s remarks were not a comment on defendant’s failure to testify, but fair and proper comments on defendant’s failure to present any evidence), cert. denied,514 U.S. 1134 ,115 S.Ct. 2014 ,131 L.Ed.2d 1013 (1995); see also Eastman v. State,47 Md.App. 162 , 167,422 A.2d 41 , 43-44 (1980). Nor do we find that the jury would naturally interpret the State’s argument as a comment on Petitioner’s failure to testify. Accordingly, we find that neither of the prosecutor’s statements were improper, nor did they violate Petitioner's right to a fair trial.”
Id. at 295,
. The concurring opinion urges this Court to abandon the Smith test and to adopt the test adopted in the federal courts and many state jurisdictions, sometimes referred to as the Morrison-Knowles test. The test proposed by the concurring opinion is as follows:
"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.”
Cone, op at 363.
The concurring opinion's proposed test has several problems. First, whether the prosecutor intended the argument to be a comment on the defendant's exercise of his or her constitutional right has no bearing on the ultimate question: whether the jury would take the remark to be comment on the defendant’s Fifth Amendment privilege. The purpose of the no-comment rule is to protect against prosecutorial comment on the privilege, not to punish the prosecutor. Therefore, the crucial question is nоt the prosecutor’s intent, but whether the jury would view the remark as a comment on the privilege. In rejecting the test that addresses the subjective intent of the prosecutor, the Illinois Supreme Court said:
“It seems quite irrelevant for the purpose of the no-comment rule— protecting unfettered exercise of the right to remain silent — whether or not a prosecutor actually intended to produce an inference of guilt. It is the effect of a remark, not the intent of its speaker, that frustrates a defendant’s exercise of the right to remain silent at trial.”
Moore v. Indiana,
Second, this test, which excludes those comments that the jury naturally and necessarily takes to be comments on the accused’s failure to testify, is, beyond cavil, less protective of the accused’s constitutional rights than the Smith test, which requires that the comment be susceptible of such interpretation. The concurring opinion complains that the Court has not specified whether the majority test is "a ‘fairly susceptible' or ‘reasonably susceptible' test.” Cone. op. at 370. It is folly to suggest that the Court would adopt a test embracing an "unreasonable” inference by the jury. Obviously, only those statements that are reasonably or fairly susceptible of the inference by the jury are contemplated by the Smith test.
. Courts have warned about the prosecutor’s use of the word “unde-nied,” suggesting that such reference, when the defendant has not testified, exposes the case to the possibility of reversible error. See United States v. Sanders,
Concurrence Opinion
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 case of Smith v. State,
The privilege against self-incrimination has historically ensured the integrity of the fundamental premise of our criminal justice system, i.e. that one is “innocent until proven guilty.” As the Supreme Court eloquently stated, this privilege:
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;
In the same year the Supreme Court held the Fifth Amendment command that no person “shall be compelled in any criminal case to be a witness against himself,” applicable to the States through the Fourteenth Amendment, see Malloy v. Hogan,
The Griffin rule squarely covers direct commentary on a defendant’s silence. 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,
This test is also used by nearly every state court in resolving claims of improper prosecutorial comment on the defendant’s failure to testify.
The Suрreme Court has never expressly approved the test. Nevertheless, Justice Stevens, concurring in United States v. Hasting,
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 Article 24 of the Maryland Declaration of Rights and the Fifth Amendment to the United States Constitution. In fact, this Court recently employed standards strikingly similar to the test articulated in nearly all other jurisdictions. In Oken v. State,
Despite this Court’s recent application of the nearly universal test in Oken, the majority prefers to resurrect a 1936 case, Smith v. State,
While our 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 afforded the Smith opinion, particularly when Oken was one of the few times this Court had been asked to consider the propriety of a prosecutor’s comments.
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,
It is particularly noteworthy that the “test” which this Court employs today is neither the “fairly susceptible” test, nor the “reasonably susceptible” test,
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,
“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 constructiondeprives 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 constitutional 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,
. A minority of states have adopted something akin to a "fairly susceptible” test, finding a violation of the Fifth Amendment privilege when a prosecutor makes a statement that is subject to reasonable interpretation by a jury as an invitation to draw an adverse inference from a defendant’s silence. See Moore v. State, 669 N.E.2d 733, 739 (Ind. 1996). Interestingly, when applying the "fairly susceptible" test, some of those states have used the second prong of the nearly universal test to articulate the standard by which to determine a constitutional violation. See e.g. Rodriguez v. State,
The minority states’ basis for rejecting the majority test, as articulated by Indiana’s Supreme Court in Moore v. State, supra, and by this Court in the case sub judice, see maj. op. at note 6, appears to be rooted in fears which, upon closer review, are unwarranted. The Indiana court claimed that "[tjhere may be an understandable impulse to deem intentional comments improper and inadvertent ones valid” because the first prong considers whether the prosecutor manifestly intended the comment to be a reference to the defendant’s silence. Moore, 669 N.E.2d at 738. I agree with the Indiana court that whether the prosecutor actually or subjectively intended to produce an inference of guilt is irrelevant. Contrary to the assertions by the Indiana court and our Court today, the nearly universal test does not suggest or require an inquiry into the prosecutor’s actual intent.
Rather, the first prong requires a court to objectively consider whether the prosecutor manifested such intent; meaning, the prosecutor's comments, taken in the context of the argument, must outwardly convey or clearly evince the intent to reference the defendant's silence. To ‘manifestly intend’ such comment is to make a statement that is readily seen, perceived or understood to be a comment on the failure to testify; it is one that is obvious and direct. See e.g. United States v. Wagner,
Furthermore, while the State of Florida boasts that the "fairly susceptible” test is a "very liberal rule,” see Rodriguez,
I believe that a clearly articulated and practicable standard often provides more protection to a defendant than a standard which is malleable.
. The prosecutor, in summation stated that, "the defendant said some things through his attorney in opening ...” and that "[his attorney] really doesn't dispute these items.” Oken, supra, at 293,
. The few other occasions where Smith was cited in relation to self-incriminаtion issues included: Veney v. State,
. The majority attempts to side-step its failure to apply the now-presumed Smith “test” in Oken by stating that "the issue of the appropriate test was never raised” in Oken. I do not dispute the majority’s assessment of the issues before the Court in Oken, as it is clear that we were tasked with determining whether a defendant’s counsel wаs ineffective because of his failure to object to an allegedly improper prosecutorial comment on the defendant's exercise of his right to remain silent. See supra note 2 and accompanying text. That the precise issue of "which test is appropriate” was not raised or addressed in Oken does not change the fact that the Oken Court did not apply the Smith “test” when determining whether the prosecutors comment was improper. The Court's failure to employ the Smith "test” then reinforces the perception of its seemingly sudden unveiling of the Smith “test” now.
That notwithstanding, if the majority’s reasoning were to stand, (i.e. Oken should somehow be less consequential because the “issue of the appropriate test was never raised”), then its reliance on Smith itself would be without merit, because the precise "issue of the appropriate test” was not before the Court in 1936 in Smith either.
. A handful of jurisdictions in this country have adopted either a "fairly susceptible" or "reasonably susceptible" test. See supra note 1.