Spence v. State

WILLIAM v. STATE SPENCE OF MARYLAND Term, September

[No. 1982.] August 10, Decided 1983. J., C. Smith, and Murphy, argued before

The cause was Rodowsky JJ. and Couch, Davidson, Cole, Eldridge, Defender, with whom Willemin, Public Assistant Louis P. Defender, brief, for Murrell, on the H. Public was Alan appellant. General, Gardner, Attorney O’Ferrall Assistant

Maureen General, the Sachs, Attorney on H. Stephen was with whom brief, appellee. for J.,C.

Cole, J., of the Court. opinion Murphy, delivered the J., JJ., C. filed dissent. Murphy, and Rodowsky, and Smith infra, dissenting in which Smith and opinion page JJ., join. Rodowsky, to the decide is whether question

The we shall a verdict rendered merits of a criminal case after argue the the defen- satisfies to and later stricken prior of counsel the assistance dant’s constitutional to throughout proceedings. the the Crim- presented were to following pertinent

The facts (now Court Baltimore of Baltimore Circuit inal Court evening On non-jury Spence. in trial of William the City) the 14, 1980, at home in his Dennis McCausland was of June responded a knock on the door. when his son apartment response the son, understand apparently The unable to there, door. Two opened to who the question was by remained apartment. the One strange stepped men into other, door, Spence, the came further into the while William room, living stating on looking the that he was someone McCausland, a man named According third floor. floor, Edwards, only who lived on the third was person Spence, who apartment. in McCausland’s was at the time drinking, com- appeared to have been carrying bag and walking apartment, up menced around the picking items. Spence McCausland did not follow because he did not know bag. was urged Spence what in the The man the door leave, Spence ignored but him. Spence

When returned to the room living McCausland sitting gun a chair next to a stand with a it. on grabbed Spence McCausland gun jumped on top him, Everyone wrestling gun. for the the apart- else fled ment. Several minutes later when a heard from noise was outside, gun go Spence McCausland let ran from apartment bag with it. leftHe and other items apartment gun and the was never recovered. police responded officer who to the incident recovered bag which Spence bag pair had left. The contained a

ladies’ shoes and stockings, prescription with the vial name Spence,” "C. and some bills listed to an address in Baltimore Spence’s which was the home of mother. After the officer left McCausland’s he apartment, received a call reporting a suspicious person on in knocking apartment doors the same call, complex. The officer the responded to Spence observed in the area and arrested him.

Spence testified at that he was drunk on evening the in question, given girl that he had buy drugs, to a $80.00 and that he and the man other were looking girl for this when he went to McCausland’s apartment. He had not been told not to enter the apartment. carrying He bag, was the belonged mother, which to his because he did not want to leave it in the He discussing problem car. his with the occupants apartment when grabbed McCausland the gun and a struggle Spence ensued. picking up denied anything in the apartment says he grabbed and McCausland being to avoid shot. When he fled the apartment, he threw gun the down the sewer and continued to knock on doors looking girl for the with money. his

At the of conclusion the case Spence State’s moved for a judgment acquittal argued of and the motion. At the conclu- of sion all the evidence he renewed his motion and submitted

without further argument. The court day recessed for the

419 the day denied the next and ruling on the motion prior to motion, the denying the After opinion. in an oral motion the verdicts announcing in pause without court continued theft. robbery, burglary, assault convicting Spence for of opportunity to his lack objected counsel Spence’s When verdicts, the court struck to the prior summation if he desired. the case argue and directed counsel verdicts argument would asserting that a mistrial moved for Counsel motion for a mistrial time. The court denied be waste At the closing argument. his presented counsel whereupon it considered had stated the court close of all of its by reference adopt would arguments but counsel’s to 15 was sentenced findings. Spence comments and previous assault, robbery, years for for years burglary, years Spe- Court appeal On for theft. eighteen months State, 359, 443 affirmed, App. 51 Md. Spence v. Appeals cial (1982). judgment. reverse that A.2d We now in this State that It is well-settled non-jury in a by prior verdict defense counsel summation right constitutional jury well as in a trial is basic trial as Maryland Declaration of by 21 of the guaranteed Article Con- United States Amendment to the Rights and Sixth Amend- by the Fourteenth applied to the States stitution as State, 228 Md. Yopps recognized We ment. (1962). had In that case the trial 178 A.2d 879 case. at the close of defendant’s entered the verdict argu- court’s attention brought counsel Defense indicated that permitted. The trial ment had not been change mind. This Court would not reversing noted that "the same constitutional the conviction jury [right of a defendant guaranty applicable to a trial equal argument] applies with proper counsel make a to have jury.” a Id. at judge sitting a a without force to trial before that The Court also stated 208. a heard

the of defendant to be right Constitutional necessarily right his to through counsel includes the argument on proper have his counsel make a favor, in his how- and the law applicable evidence clear, simple, ever unimpeached, and conclusive the seem, may evidence unless he has waived his right argument, such unless or the is not within the issues in the and the trial court has no deny discretion to accused such right. [Id. at 207 (citations omitted).]

The United States Supreme Court followed our lead in Herring York, 853, 1975. In v. New 422 U. S. 95 S.Ct. 45 L.Ed.2d 593 the Court struck down New York every statute which provided in a non-jury crim- inal trial authority had the deny final summation before rendition of judgment. The Court held that the statute denied the accused the assistance guaranteed by of counsel the Sixth the Amendment of Constitution and stressed the importance closing of in a criminal proceeding. can closing

There be no doubt that argument for the defense is a adversary basic element the factfinding process in a criminal trial. Accordingly, it universally has been held that for counsel the a right defense has a closing make summation to the jury, no strong matter how the pros- case may ecution appear presiding judge.... [C]losing argument sharpen clarify serves to issues resolution the trier of fact in criminal only case. For it after all is evidence in that counsel for parties are in a position to present respective their version of the case as a whole. Only they argue then can the inference to be drawn from all testimony, point out the weaknesses of their positions. adversaries’ And for defense, closing argument is the last clear chance to persuade the trier of may fact that there be reasonable doubt guilt. [Id. defendant’s 858-62.] Court, citing pointed Yopps, out that the weight

authority is clear denial of summation before verdict is a denial of a basic present accused to defense.

421 Herring are fac- however, note, Yopps and that both We coun- subjudice; here defense case different from the tually closing argument make opportunity an given was sel issue thus were stricken. the verdicts though after has closing argument after whether becomes is sufficient and stricken same the verdict pronounced make a counsel right to have his defendant’s with a comply it not. We hold that argument before verdict. closing Generally, frequently. not precise This issue has arisen totally trial court where the involve circumstances the cases for summation and opportunity defense counsel denied However, in several instances not the verdicts. did strike they reopened the case reversed where trial courts have been candidly that counsel’s admitted but no purpose. would serve point at (4th 1981), is King, 650 F.2d 534 Cir. United States v. an ob- over magistrate presiding There a U.S. illustrative. guilty found the defendant property of federal case struction giving without immediately parties had rested after closing argument. present an defense counsel stated, ahead "go response objection In to counsel’s my finding. It’s already made you argue if it. I have want to you argue If the case anything. ... want to going change record, as I’m con- that’s fine as far appeals, for the a fine of disposition $25.00. Id. at 536. The final cerned.” Circuit reversed Appeals The Court of for the Fourth Court, stating: District who face dealing are with defendants

When we type permit cannot this imprisonment, fines and we defendant’s presentation on of restriction course, retains the broad case. Of the trial court of all scope and duration discretion to limit trial, how- including closing argument; phases of ever, proper with this must be exercised discretion [Id. rights. constitutional regard for the defendant’s 537.] People In v. Dougherty, App. Cal. 3d 162 Cal. Rptr. the California appellate court addressed precise said, issue before us.1 It part: The record in clearly this case shows that there was Dougherty’s a denial of right closing argu- to have a judge ment before the amade of guilt determination or innocence.... shows,

Insofar as the record constitutional error place took in this case. Such an error be cannot by cured the withdrawing the of finding guilty and it reopening for the purpose hearing of argument after the Hearing decision.... by matter a totally after decision is unrealistic. Short of granting the actual aof new trial having error remains. The bell rung (see cannot be unrung the Rubaiyat of Omar 72). Khayyam, stanza [Id. at 280 (emphasis (citations omitted).] original) McNair, 369, Commonwealth v. 208 Pa. Super 222 A.2d (1966), 599 also addressed the issue of after verdict. In McNair defense counsel requested right refused the In reversing court, summation. the trial the court stated: cannot accept

We the district attorney’s argument denial right this summation was not prejudicial subsequent because of the opportunity defendant’s counsel had to review the evidence 15, under the Act 1951, 585, 1,§ of June P.L. 19 871, § P.S. in arguing post-trial motions. We cannot reasonably conclude that an made after a decision has been made is always as effective correctly points 1. The State Dougherty out that the decision in has been by W., 349, modified App. Rptr. In re Michael 122 Cal. 3d 175 Cal. 886 (1981); People Manning, App. v. 120 Cal. 3d Rptr. 174 Cal. 625 (1981). However, only these cases hold that the to summation cannot appeal Thus, he raised for Dougherty. the first time on as was allowed arguments persuasive. Dougherty the are supported by advanced in are still case law and [Id. time. such if made before have been might itas 600.] Diaz, 988, 275 Ill. 3d N.E.2d App. In People Illinois, case, Court pre-Herring Appellate a prior of summation insightfully recognized importance rendering a verdict. by process impartial judicial A fair and by decides; it it which a court hears before which and renders inquiry dispassionate conducts evidence. only receiving after judgment In a of a fair trial. Pre-judgment is antithesis case, contem- statutes and constitution criminal our opportunity an plate that the trial include Therefore, his cause counsel. argue defendant guilty he is found before rests where defendant given him or his coun- without an the cause, and without waiver of argue sel to deprived to is denied a fair trial and right argue, he and federal process guaranteed of due our state 212-13.] [Id. constitutions. at (6th 1971); Walls, United v. 443 F.2d 1220 Cir.

United States F. Supp. 273 923 Pennsylvania, v. Commonwealth States (E.D. (Ala. 1967); State, 333 So.2d 891 Cr. Grigsby Penn. v. (Fla. 1976); State, 1956); Floyd People So.2d 105 App. v. (1973); Thomas, 390 Mich. 210 N.W.2d 776 Walker v. 1937). (Tex. App. Cr. State, 110 S.W.2d conclude, therefore, that here the trial court violated We to right the defendant’s constitutional the assistance it rendered its verdict before counsel had counsel when striking the verdict closing argument and that presented argument thereafter did not cure the defect. permitting and effectively arguing from to Counsel was foreclosed the apartment whether the defendant entered the factfinder or to steal the burgle, prior with the intent to to rob to announcing his decision. view, trial, presiding judge obliged

In at a bench the is our mind, having subject every open indicia of an to display to being persuaded by a and logical convincing argument, prior announcing Furthermore, the verdict. the is verdict signals moment which the defendant’s fate. He is constitutionally entitled to an opportunity before that moment to attempt to convince the trier of fact he is guilty beyond innocent or that he is a reasonable doubt. Depriving him of this is tantamount day shortening his in court and him denies a fair trial. In our judgment, striking verdict cannot restore the stage, same nor create same atmosphere of fairness. Moreover, process due includes to have counsel argue hopeless the most case to the factfinder before verdict. It is clear if argue counsel must such case after the verdict announced, truly counsel will be in the "whistling wind.” Herring, As Court said in supra: may Some cases appear the trial sim- judge to be — —

ple open and shut the close of the evidence. And surely many closing such cases a will, Jackson, Mr. Justice "likely the words of be to leave judge just [a] where it But just found him.” surely, there will be cases where closing argu- may ment premature misjudgment correct a avoid an otherwise erroneous verdict. And there is no way certain trial judge accu- identify rately be, which cases these will until the has [Id. at heard counsel. closing summation of 863.]

Here error was clear the prejudice was manifest. finally argues State that defense counsel’s concession in his that the assault question” "closed constitutes harmless error as to the charge assault since it probably same counsel would have made before the verdicts.

At the time made, defense counsel’s remarks were already had found the defendant guilty of bur- glary, robbery, assault, theft and verdicts, stricken these argue. and instructed counsel actually What counsel said was: I question. don’t assault, that’s closed

As far as the put if him but he did intended to assault think he he his when shouldn’t by entering him in house fear assault, he have, an whether then it would be intoxication, not, it’s not a intended it or because assault. defense to an if argu- these remarks have made

Whether counsel would to verdict we do not know. How- prior had made ment been now, by defense counsel at ever, we it such concession see may have been "last stage proceeding of the well this an that he salvage justice from exercise ditch stand” to some "a of time.” Counsel already indicated to be waste had change the to make effort to obviously constrained some felt give remarks some judge’s closing judge’s mind and the trial dissuasion. idea counsel had a burden of credence to the said: [counsel], your argu- me I’ve listened say, Let any I think there is element ment and don’t testimony that I did aspect offense or my I made earlier comments. consider when I So, your [counsel] arguments, considered having by my previous comments and adopt reference all beyond findings finding now a reason- make have able doubt that all of essential elements is proved and the Defendant therefore been guilty---- circumstances, say beyond cannot these we reason-

Under committed the trial court in able doubt that error prior to defense counsel’s rendering guilty verdicts did assault closing argument not contribute defendant’s conviction.2 State, 638, 659, 350 Dorsey 2. See A.2d 665 where Md. this held:

Court error, appellant, an in a unless a when reviewing criminal establishes record, court, independent upon its own review the Accordingly, judgment Court Special of Appeals is reversed.

Judgment Court Special of Appeals reversed.

Case remanded to that Court judgment reverse the of the Cir- cuit Court for City Baltimore and a remand for new trial.

Mayor City Council pay Baltimore to the costs. Murphy, J., dissenting: C. today

The Court per fashions a se rule which requires new trial whenever the trial judge announces a verdict before the argu- defendant has either made or waived closing doing, ment. In majority so creates flat and absolute rule of constitutional dimension which is not recognized any I, other jurisdiction. therefore, respectfully dissent.

The trial in court, this case was before the sitting without jury. At the conclusion of the State’s Spence moved for a judgment acquittal argued favor of the motion at some length. denied, After the motion was the defense presented At its case. the conclusion of all the evidence, the following colloquy ensued:

"MR. I [defense counsel]: FRIEDMAN will judgment renew our motion for of acquittal, Your Honor, both as to and all informations counts. you

THE heard, COURT: Do want to be Mr. Friedman? Well,

MR. Honor, FRIEDMAN: Your I’d submit the same as to the motion that I gave before. belief, doubt, beyond

able to declare a in no "harmless” and a a reasonable that the error verdict, way influenced the such error cannot be deemed reversal mandated. Crowe, do want you Mr. THE COURT: be heard? submit, Honor. Your The State will

MR. CROWE: I need right, gentlemen, All THE COURT: matter, frankly.... this time to consider some point. recess at this I’ve to got THE COURT: — I I want to take Annapolis and got get I’ve to to of consider some the my notes and to review want Friedman, any in Mr. raised legal questions this until tomorrow So continue event. we’ll morning.” pro- judge continued the morning, next the trial

ceedings. He stated: testimony is that posture the of the case

"... acquittal of judgment for finished and that motions had to review I’ve the were renewed. night. over at some law

my again him gun and did take the belonging to Mr. McCausland, get that he did not the hair dryer and premises, electric razor offthe by any design but because he was thwarted in his efforts victim, McCausland, Mr. who reached gun for the stop tried to him.” The thereafter rendered verdicts on all remaining counts, process occupies which over six double-spaced pages in transcript. pages Another two record a discussion about a pre-sentence investigation report and continuation point, of bail. At this Spence’s counsel addressed the court:

"I appreciate Your calling upon Honor me at this stage the proceedings. I want the record to reflect something. When adjourned yesterday we I had judgments moved for I acquittal. my renewed motions and told Your Honor when Your Honor asked me that I submitted as to the same argument on the motions that I had rendered at the conclusion of the trial as original to the judgment motions for judg- motion for reargue I acquittal, didn’t say this, I to court came acquittal. might I ment of concerning the morning argue prepared this verdict. Concerning what?

THE COURT: Now, I Concerning FRIEDMAN: the verdicts. MR. Your granted opportunity.

have never been continued the motions and started to rule on Honor I inter- I know that when into the verdicts and on for that. Honor, Honor doesn’t care Your Your rupt given the I have never been I understand that. can I in this case and the verdicts argue these verdicts to strike out would ask the court file a motion for intending I’m because otherwise I never been called ground. trial on have a new argue upon to those verdicts. sorry.

THE I’m COURT: I quite I had a bit that had MR. FRIEDMAN: morning and there are to discuss this prepared has not a few I think Your Honor quite items that upon touched that deserve consideration. you yesterday

THE COURT: I understood on issue. simply submitting the whole were Honor, you if read Your No. FRIEDMAN: MR. — record — THE are COURT: verdicts — you will find that’s mis- MR. FRIEDMAN: take. stricken,

THE are Mr. COURT: The verdicts you. I’ll hear glad Friedman. from be MR. FRIEDMAN: Sir? stricken, I’ll

THE The verdicts are COURT: you. hear from Well, Honor, you have

MR. FRIEDMAN: Your I I know how can already rendered verdicts. don’t — I ask you to those verdicts. would get change now — THE COURT: Mr. Friedman — MR: FRIEDMAN: for a mistrial.

THE you COURT: Do want me to strike them or not?

MR. Honor, FRIEDMAN: formally Your I’ll move for mistrial at this time.

THE I’ll COURT: strike the verdicts. I’ll be glad to you, hear from sir. Well,

MR. Honor, FRIEDMAN: Your I don’t feel that if I argue the case at this time I could possibly convince Your contrary Honor you what already have explained. I don’t see how that pos- sible. saying go That’s like jury back to the argue your case they now after have rendered guilty. verdicts of

THE Friedman, COURT: Mr. jury I’m not a I note I that can be persuaded by argument and that —I’m if I am persuaded, it wouldn’t be the first time

because I’ve against ruled a previously taken posi- tion that I’ve had on other occasions. I strike the deny verdicts and the motion for mistrial and I’ll be glad to hear you whatever say, have to sir.

MR. If FRIEDMAN: Your please, Honor I will first move for a mistrial at this time for the reason I have not been afforded the argue the- prior entry verdicts to the of verdicts this honorable court.

THE COURT: That motion is denied. MR. All right, FRIEDMAN: sir. If that motion is denied, I wish to advise the court that I intend to file a motion for new trial on that ground. —

Now, if the court insists that I argue THE Friedman, COURT: Mr. the matter is not ripe for a motion for new yet because the Now, verdicts are stricken. if you want argue, you fine. If don’t argue, want to up you. that’s I Well, please, if Your Honor FRIEDMAN: MR. time in order at this argument is

don’t feel concerning the has said what the court after granting my if the on not verdicts but court insists I mistrial, and feel before argue then I’ll motion I don’t know how I it’s a waste of time. start that put it. else to Friedman, not going Mr. I’m to

THE COURT: you If do or do. you you tell what should shouldn’t glad I’ll to it and be argue, glad I’ll be hear want say. carefully you have to to what listen right. All MR. FRIEDMAN: argue, then you If don’t want to

THE COURT: argue. you may very your well forfeit please, If since I’m FRIEDMAN: Your Honor MR. down, my I client I

compelled to do so and can’t let argue will the case.” argue at proceeded length, during then counsel

Spence’s particular him on issues. At the questioned court which the noted: end, court Friedman, say, Mr. I’ve Let me

"THE COURT: there is and I don’t think to your listened aspect of the testi- the offense or any element of my I ear- made I did not consider when mony that lier comments.” closing issues raised discussing

After several the court concluded: Spence, Mr. "So, your arguments, having considered my Friedman, previous all of adopt by I reference finding findings and now make comments and all the essential doubt that beyond a reasonable and the Defendant proved elements have been .” guilty ... therefore emerge. discourse, features several lengthy

From this mistakenly assumed First, juge although the Spence had concluded his case and had waived further closing argument, the error clearly inadvertent. When the error was belatedly brought to judge’s attention, he struck the satisfied, verdicts. Not Spence moved mistrial, which was denied. It is evident from the transcript that the trial Spence afforded a meaningful opportu- nity argue to his case. That Spence was not ultimately suc- cessful with his argument not does mean that his effort was Indeed, futile ab initio. in his unsuccessful argument in sup- port of initial motion for acquittal, Spence raised the points same that presented he in his later closing argument. I fully agree with the Court right that the of a state crim- inal defendant to effective assistance of counsel is guar- by anteed both the federal and constitutions; state and that one component of right is that counsel be afforded an opportunity to argue the merits of the case before a verdict Herring York, rendered. v. 853, New 422 U.S. 95 S. Ct. (1975). 2550, 45 L. Ed. Indeed, 2d 593 Maryland was one of jurisdictions the first to recognize the importance of the right in a court Yopps State, 204, trial. v. 228 Md. 178 A.2d (1962). In Yopps, as we later pointed in Covington out State, v. 282 Md. 386 A.2d 336 the defendant who was offended the failure of the permit to closing argument on his behalf immediately protested. No protest such in Covington raised and the claim of reversible appeal error on was denied.

Unlike present the cases upon by relied majority concerning violation of a right defendant’s to closing argument involve an affirmative and intentional any denial of effective opportunity argue. to In United States (4th King, 1981), 650 F.2d 534 Cir. judge, the trial after verdict, rendering gave defense counsel a chance to make closing argument following manner:

" 'THE you COURT: Go ahead if argue want to it. I already my

have finding. made going It’s not to change Mr. anything, Shapiro. record, for the for the argue the case you

If want to But I’m fine far as concerned. that’s appeals, least given you at gone on. I have this case has your own clients to confer with fifteen minutes here. in the courtroom Yes, sir.

MR. SHAPIRO: waiting people we other THE COURT: And have charges we have a number drug here on get on this afternoon. cases have Well, certainly, I have would MR. SHAPIRO: going if it’s argue, but preferred reason, mind, any I don’t see change the Court’s to do it. point, this not, own on the defendant’s THE COURT: It’s based ” statement.’ 536. Id. at counsel, right finding

In a violation of defendant’s after verdict was not been that the had waived rendered, enlightening: the rationale is court’s offer the

"Technically, magistrate the did counsel the right; however opportunity to exercise this closing stated that a magistrate unequivocably not This is argument change not his mind. would a defendant’s the kind of environment which effectively advocated. Because interests can be with any proceed real opportunity the absence of closing appellant we find the did argument, Walls, F.2d v. 443 right. waive this United States (6th 1971).” at 536-37. 1220 Cir. Id. (6th Walls, 1971), 1220 Cir. is States 443 F.2d

United v. factually King. judge In rendered a similar to immediately both sides adjourned and after verdict noted omission of After defense counsel concluded. reopened, closing argument, the record was but futile, he then be because had argument stated that would mind. at 1223. In United States v. already up made Id. 434 (E.D. Pennsylvania,

Commonwealth Supp. 273 F. 923 Pa. 1967), off opening cut defense counsel’s sen verdict, argument tence of to announce the and thereafter prevented any meaningful comments. Id. 924. In v. People 988, Diaz, App. (1971), 1 Ill. 3d 275 N.E.2d 210 the trial judge interrupted the proceedings three times to announce a guilty verdict before the defense had its concluded case. See (D.C. Columbia, also Thomas v. 424 District of 90 F.2d Cir. (Fla. 1937); Floyd State, 1956); v. 90 So.2d 105 Common (1938). Richman, wealth v. Pa. Super. 529, 132 1 A.2d 578 McNair, In 369, Commonwealth v. 208 Pa. 222 A.2d Super. requested 599 defense counsel was refused the right of summation at the conclusion of evidence. In to the response State’s assertion that on post-trial equivalent motions was a closing argument, appellate noted, court reasonably

"We cannot conclude an argument after a always made decision has been made effective as it have been might if made before such 371, time.” Id. at 222 A.2d at 600.

Most of courts which have found a denial so closing have done where the defense requested explicitly an refused summation. (Ala. State, See, e.g., Grigsby v. 333 So.2d Crim. App.), 891 (Ala. denied, 1976); F., cert. 333 So.2d 894 In re 11 Cal.3d 170, 249, (1974); 113 Cal. Rptr. 520 P.2d 986 State v. (La. Moorcraft, 1975); 319 386 State So.2d v. 26, (1925); Hollingsworth, 160 La. 106 So. 662 People v. Thomas, 93, (1973); 390 Mich. 210 N.W.2d 776 Decker v. State, (1925); 512, 150 State, 113 Ohio St. N.E. 74 Ruedas v. (Tex. 1979); App. State, 586 S.W.2d 520 Crim. v. Walker 133 300, (1937); State, Tex. Crim. Ferguson 110 S.W.2d v. State, (1937); Anselin Tex. Crim. 110 S.W.2d (1913). 17, 160 72 Crim. People Manske, Tex. S.W. 713 v. Cf. (1948) (refusal 176, 399 Ill. 77 164 to closing N.E.2d hear argument not argument reversible error where such would helpful). not be

435 dicta, states, only The least in that squarely case at argument announcing closing a before is either made verdict counsel, per right or waived is a se violation of the reversal, Dougherty, requiring People Rptr. 162 Cal. v. (1980).1 277 That case was ordered deleted from the 270, 102 Reports, App. California see Cal. 3d Appellate on by Supreme direction of the California Court order dated August 14, 1981, its is at and thus status as valid law best Dougherty by California clouded. has been criticized other appellate panels, followed, not and has been In re Michael 2 (1981) W., (juvenile proceedings); People 175 Cal. 886 Rptr. (1981). 421, 174 Manning, Rptr. 120 Cal. 3d Cal. 625 App. short,

In no far highest gone state’s court has as the majority does here. by reached the result not counsel

Maryland law does case 204, 879 State, 178 A.2d 228 Md. Yopps v. majority. In refused to timely objection, over (1962), judge, it wouldn’t commenting that argument, closing permit 583, State, 236 Md. Modo v. change In Rome and his mind. (1964), inadvertently announced 674 "the court 204 A.2d whether finally had ascertained counsel verdict before Md. at 586. testify.” 236 defendants desired The court were then stricken. apparently verdicts premature of the verdict untimely that "the announcement concluded was 587, request no and that since id. at prejudicial,” was not opportu of the earlier argument, light closing made for ofthe "the reinstatement acquittal, nity argue motions In at 588. not Id. guilty prejudicial....” ... verdicts of was 330, State, 254 A.2d App. 7 Md. Smith v. Moore a/k/a no found waiver Appeals of Special the Court specific of a from the absence closing whether, in the question not address request, but did remedy the omis could the trial court request, face of such a denial of such found Special Appeals Court of sion. The any request point. Dougherty 1. no There was Thus, situation were directed to factual the court’s comments presented in the case. (deleted App. Supreme 2. 3d on See Cal. direction Court 1981). order dated October 436

specific State, request 505, 378 in Baines v. 37 Md. App. A.2d (1977). 177 This Court overruled Moore Covington in v. State, 540, 386 282 holding Md. A.2d 336 that denial right to closing preserved appeal is not a timely objection unless is made at dissent, Judge trial. In that, Eldridge argued in implication contrast to the in Covington post-verdict argument satisfy the might right, any argument given after a verdict is rendered would satisfy right closing argument. today, Until such Maryland has not been law.

Implicit Covington is proposition that there must be timely a objection to a denial of argu to closing Indeed, observed, 543, ment. the Court there id. at that "it is upon litigant incumbent a to make known to the court an objection to the action the court at the practicable earliest opportunity.” Even errors of may constitutional dimension be waived timely failure to a interpose objection at trial. See, (1966). State, e.g., 111, Hewitt v. 242 Md. 218 A.2d 19 principle procedural involved that such errors are not reviewable unless the trial given court is first the opportu nity to correct an inadvertent oversight. If the defendant all, neglects to at or if object objection he withholds his until correctable, the error is longer no he cannot assert the error Here, on appeal. Spence’s counsel waited the very until end of an findings by extended series of the trial court before objecting. objection, quite simply, The belated untimely was under Covington.

In case factually similar Covington, the United States Court of Appeals for the Third Circuit also held closing denial of argument was not preserved for appeal timely objection. absent United Spears States ex rel. (3d Johnson, 1972), 463 F.2d 1024 Cir. rev’g Supp. 327 F. (E.D. 1971). 1021 Pa. In noting that the defendant and his counsel had object trial, failed to apparently reasons, tactical the court commented: incumbent "[W]e believe that it upon them under these timely circumstances make a objec- judge’s alleged tion the trial refusal to permit could summation, which the defect case closing prejudice substantial remedied without been have 1026. Id. at Commonwealth.” or the Spears to either (no 1968) (5th States, Cir. F.2d 467 United See v.West Berger, People v. timely objection); request no or error where (1918) (no where counsel error N.E. 975 284 Ill. announced). after verdict delayed request until assumption that is the majority’s decision Underlying the verdict, is prematurely rendered having once judge, a trial Cer- case. argument in the further fairly unable to consider judge’s either the settings where are factual tainly there strong prejudicial indicate a or at trial own words actions However, present case bias, in the cited cases. typified as denial, rather than an intentional indicates an inadvertent to correct judge the trial good-faith effort and there was a does, that say, majority To as the procedural deficiency. con- and premature strike the verdict judge trial cannot of in the face closing arguments flies sider the defendant’s Hutchinson, 227, 271 A.2d Md. reasoning in State v. our (1970). the trier sitting as judge, the trial In Miranda in violation of fact, taken of admitted confession and he realized his mistake Subsequently, guidelines. confession, declaring completely that he would excluded the Special The Court of his verdict. disregard reaching it in conviction, 41, 262 A.2d App. 9 Md. Appeals reversed knowledge by judge ofthe confes- ground on the reversing, we of a fair trial. In deprived the defendant sion said: Special of [Court assumption

"This first, not we to believe might be valid were Appeals] he disregarding that was judge’s trial statement the sub- eliminating from his deliberations and confession, secondly, and of the inadmissible stance experi- expertise, ignore professional choose our ence, with which judicial temperament inherently invested a trial legal system has true that laymen. of It is jury comprised vis a vis a judges, blood, being flesh and subject are to the same emotions and human frailties affect other of however, members the specie; by his legal training, approach traditional to problems, and the very state of the art profession, of his he early must learn perceive, distinguish interpret ” nuances the law 'warp which are its and woof.’ Id. at 233.

Today, the prescribes Court an inflexible and absolute that, rule notwithstanding timely the lack objection, where a in nonjury case inadvertently renders verdict, a premature stricken, which is later he is thereafter incapable, any circumstances, and all fairly considering closing argument. I simply am unable prescribe an such unwise rule.

I am authorized to Judges state that Rodowsky Smith and join in this dissent. notes and look I to do and then say propose of all me what First let explain why. I’ll indictment,. 0501, robbery .. respect With the of as to deny acquittal motion for judgment I do the count, three, robbery the being one and one counts assault, assault being simple common law three the count, for of grant judgment and I the motions two, four and five. With to counts acquittal as etc., indictment, 0502, I respect burglary, the acquittal of deny judgment the motion motion grant one four and the count and count and three. acquittal of as to counts two judgment count, Now, let the first gome back to count, robbery it is that Defendant on charged 14, 1980, City in at 5422 Relcrest Baltimore June McCausland, complainant, did Dennis Road rob the him violently property did steal from certain in to the is described the exhibit attached which indictment, one .38-caliber Smith and Wesson blue revolver, the value of less than three hundred ($300) money. dollars current I don’t recall what value Mr. McCausland testified to but the value event, was not a matter consequence, any in in But, robbery. course, robbery is the taking carrying away unlawful goods, property money or of another from the victim’s per- son or presence by immediate putting force or in beyond fear. I find a reasonable doubt that all of the robbery essential elements of proved have been is, this there was a taking and carrying away personal property of another. all, First of dryer hair and the electric razor and gun also the and I find complaining witnesses’ testimony to be credible in that respect. I do believe that the Defendant pick up did certain items premises, place them in bag this that he had with

Case Details

Case Name: Spence v. State

Court Name: Court of Appeals of Maryland

Date Published: Aug 10, 1983

Citation: 463 A.2d 808

Docket Number: [No. 52, September Term, 1982.]

Court Abbreviation: Md.