Wilhelm v. State

v. STATE OF MARYLAND WILHELM 277, September Term, [No. 1973.]

* * * COOK v. STATE OF MARYLAND 283, September Term,

[No. 1973.] September 26, Decided J., argued The causes were C. before Singley, Murphy, Eldridge JJ. Smith, Digges, Levine, O’Donnell, Bums, George Jr., Zerwitz, M. E. and Arnold Assistant Public appellant Edward for Charles Wilhelm. Defenders Zerwitz, Defender,

Arnold M. Assistant Public with whom George Bums, Jr., Defender, E. Assistant Public on the brief, appellant for Kevin Exavier Cook. Keane, Attorney General, I.

James Assistant with whom Burch, General, W. Attorney B. and Clarence were Francis General, Sharp, Attorney Assistant brief, appellee on the for Maryland in No. 277. State General, Bundy, Attorney

James L. Assistant with whom General, Burch, ttomey A W. B. and Clarence Francis were General, Sharp, brief, appellee Assistant on the Maryland in State of No. 283. J., opinion delivered the of the Court.

O’Donnell, Levine JJ., Levine, J., in No. 277 and filed a dissent Eldredge, J., page dissenting opinion concurs at in which Eldridge, 446 infra. appellant

The following Charles Edward Wilhelm a (MacDaniel, J., presiding) trial in the Circuit Court for County, Baltimore was convicted of assault with intent to police officer], resisting murder with arrest and with the [a handgun unlawful use of a felony. the commission of a Special Appeals The unreported opinion Court of in an Charles Edward Wilhelm v. State [No. 224, Sept. Term, 1973], judgments.1 affirmed the Judge Moore, majority three-judge panel, although for the of the suggesting se, prosecutor may improper, per that the remark of the have been significant brevity singularity found “the of the statement in a trial by prejudice

otherwise unmarked taint of to the accused” and authority State, concluded on the Clarke 238 Md. 207 A. 2d 456 (1965); (1949); v.Wood 192 Md. 65 A. 2d 316 and Holbrook v. App. appreciable A. 2d that there was “no prejudice likelihood that the was misled or influenced to the appellant by prosecutor.” Judge Moylan, the statement of the in a concurring opinion, instance impropriety concluded that there was “no in the first prosecutor’s remarks; adversary system that under an such proceedings should not be sterilized with too fastidious a list of ‘Thou shalt the Assistant State’s At the commencement case, introducing after himself to Attorney prosecuting jury, follows: stated as charged Mr. Wilhelm on a ten-count “The State has to murder one with assault with intent indictment Huber, County Phillip Police G. a Baltimore September 18, 1972, in on Baltimore Officer, also, charges. The County. Listed, are several other robbery, prove intent intends to assault with State rob, resisting arrest, and, under new March, handgun passed bill violation of the use last handgun in the of a crime. a commission Jury’s as individuals feels chance State is this County collectively as citizens of Baltimore police protection cry we we hear the hue something your feel this is occasion to do about it.” (Emphasis supplied.) “to requested leave objected and appellant for the

Counsel following colloquy took bench,” where the approach the place: My objection made on basis

“MR. MILES: is making Jury plea is a that the alluding dealing passion, with opening statement my police of duty protect to convict client society. only going I is us and feel it our objection. my There no more this is basis police assaulting duty officer for conviction person, I like to and would make another than I feel and I make a motion for a mistrial. objection Jury prejudice. for inflamed the calls it has I I think have disagree. I LaVERGHETTA: MR. ” keep in not “to the balance true” a commitment nots.’ He advocated appeal option order” in inhibiting of the State to “law the rhetorical attorneys palpable a demonstration defense unless he saw abstract effectively appealing being to the that the inhibited from were as well “Constitution” or the believing abstract, Rights” in “Bill of range form,

jury argument a “broad forensic art advocated was performing artists.” 408 Jury opening prerogative in statement to tell the

a present duty the case. their is and what right, THE All the motion for a mistrial COURT: duty tell them what their is is denied. You can listening go to the entire case but don’t reference to police protection or about officer into the situation Closing argument may anything be different else. duty basically is and what is what their but this you prove. The motion for a mistrial intend to denied.” cautionary appellant requested no

Counsel gave The jury and the trial court none. instruction to the further opening was then concluded without statement objections. subject-matter additional reference to the question: limited granted Wilhelm We certiorari judge when he to declare a erred failed whether the trial disregard and failed to instruct mistrial opening prosecutor in statement. comments made Cook, following jury the Criminal Kevin Exavier J., City (Sklar, presiding), convicted of Baltimore Court (of Dean), degree murder in the first one Charles of the (of deadly weapon robbery dangerous and attempted with a (of Conyer, companion Dean) robbery James one judgments Dean) entered under a third indictment. Special were affirmed the Court his convictions on per in Kevin Exavier Cook Appeals unreported curiam Term, 210, Sept. v. State 1973].2 [No.

During opening statement in Cook the Assistant that what he was then advised State’s say I but was “what telling “not evidence” them was During opening you.” the course of the will tell witnesses undertook to relate to the for the State statement counsel Special Fryson State, App. Appeals, citing 2. The from Court 320, (1969) “In that remarks created a likelihood that he was denied his (1973), Conway App. 400, 7 A. 2d 301 A. 2d 211 Md. App. 265, A. 2d and Holbrook v. Md. held light fact that the had on three occasions been informed evidence, arguments of counsel were not we cannot conclude that the prejudiced that the to the extent accused was right impartial to a fair and trial.” jury appellant Counsel for the Mr. Dean’s “last words.” objected, advised court a “bench conference” that and at relate was about to what the State’s — Following hearsay denial of a statement. a inadmissible upon predicated ruling by the court motion for mistrial prosecutor opening permit the to continue his that he would proffered opening statement, if what been in that had proved, by either counsel was not statement evidence, Judge would not to consider such be instructed Sklar follows: then instructed as gentlemen jury, you “Ladies and know interruption there has of Mr. been Libowitz’ opening you. you statement to IWhat want to tell anything you is is to said in opening by counsel, by lawyers, is statements not evidence And, likewise, anything the case.- to is said you by counsel, whether or not for the or for State closing argument, defense in is not evidence Closing argument the case. exactly what implies; argument word merely persuade you posture think in the talking you of whoever is based testimony on the only . the case. . . The you evidence that hear comes from the witnesses testify who through case exhibits are filed in (Emphasis the case as supplied.) exhibits.” opening statements of both counsel were then concluded objection. without additional closing

At the outset of before the assistant stated: jurors, you

“As veteran will have to decide the issues in case. you paid

I very noticed have close attention to all appreciate witnesses I your case and paying Because, this much attention. what is said the witness stand and the various exhibits from you introduced in case is all that will use your jurors determine verdict. You as triers (Emphasis the law supplied.) and the facts.” summarizing testimony After the various witnesses, midway closing argument in his jury: told the telling you

“What I am now What is not evidence. attorney you the defense tells is not evidence. The only you evidence for to consider is what plus witnesses stated on the witness stand (Emphasis supplied.) exhibits. .. .” closing argument And at the end of his stated following: sense, “Common your greatest that is asset. Use Weigh it. all of the evidence determine what happened. people year thirty

Last some three hundred were City. murdered Baltimore This is one of those year; Maybe you murders from last Charles Dean. newspapers year. in the I didn’t read about it last many people don’t how were robbed in the know City weapons. many, I how with don’t how [sic] but, a Some of the victims in those robberies lot. many people were murdered. There are like Mr. Dean who are defenseless the face of Charles healthy Defenseless, Papa. young men. like four him He defend You saw on the stand. couldn’t — are the victims the most common himself. These toughs fight young they can’t victims because people They back. are the that are robbed. people get who commit these crimes Some of the away type people they with them of the because right nothing in attack. I am sure there is the world like than to now that Mr. Kevin Cook would more go get away what he did on scott free and with August 27, planned along 1972. That is what he all friend, he use name. when told his don’t you jurors gentlemen, cannot let Ladies and why get away Kevin Cook scott free. That you bring going ask back a verdict of State is guilty.” (Emphasis supplied.) again appellant, at Following for the statement counsel the basis that conference, a mistrial on moved for a bench prejudicial statements” “made had the State’s of murders the number particularly in reference to concerning the number committed in Baltimore denied the court people robbed. who had been to the fact then made reference motion.3 Defense counsel co-defendant) (a had not Anderson one Leonard — he testify reason not to for whatever testified “Chose an inference requested the to draw not to” and chose upon objection, trial court stated fact, and from that proper about it was to comment [the] that he did not think Similarly, testify. the trial refusal a co-defendant] [of attempt defense objection to the court sustained closing argument to read to the counsel by the in the answer to listed State names witnesses part discovery,4 again an effort on the to the motion for his client “tells defense counsel to relate to the what of me.” question: granted in

We certiorari Cook limited to closing argument of State’s whether the Assistant beyond scope permissible comment. prosecutions, although opening In the trial of criminal closing equated in a trial cannot be with statements similarity arguments jury, made to the there is sufficient permit generally in both to the issues involved principles.5 application thread of common Since the common prejudicial alleged in in Wilhelm and Cook is the both prosecutor, we have consolidated both statements ruling. for discussion cases

The primary purpose opening statement in or office of an Appeals appellant Special argument broadened the in the Court closing argument scope upon reference that to include the of his attack toughs” fight “young many who could not victims of Dean was one of the back. discovery had not been offered motion for 4. The answer to the 316, 643, 652, Compare 65 A. 2d 320 Wood evidence. appearing concerning on the indictment. witnesses names of 86, (1950); 106, 112, Painter, 23A 5. See 63 91 State v. 135 W. Va. S.E.2d 108511961). C.J.S. Criminal Law § apprise prosecution is to with reasonable a criminal questions the trier of facts of the involved and succinctness expects prove defense so to what the State or the to as prepare the trier of facts for the evidence to be adduced. prosecutor should be allowed a reasonable latitude While' the opening he to statement should be confined proved on facts that can be and his statements based opening include to facts statement should not reference will plainly inadmissible and which he‘cannot or which are prove, good permitted or which he faith does not not be expect prove. opening An not statement counsel is binding generally has no To evidence and force or effect. opening statement the accused secure a reversal based on part usually required to establish bad faith on the prosecutor expects prosecutor in the statement of what the resulting prove or establish substantial 19-20, 11,Md. A. 2d therefrom. Clarke v. App. 259, 266, A. (1965); State, 11 Md. 2d Ott v. (1971). denied, 262 Md. 748 cert. is, general rule, range summation, within the As to it legitimate argument for counsel to state and discuss the legitimate inferences which evidence and all reasonable evidence; and such comment may drawn from the facts be range. is free to use argument a wide Counsel is afforded argument testimony most favorable to his side collated, examined, may jury, evidence sifted and the Moreover, way. if not counsel does and treated his own fairly deducible from the of fact not make statement although improper, is not evidence his Generally, illogical and erroneous. inferences discussed are argument any or right to make comment counsel has the proved inferences evidence is warranted the attorney free therefrom; prosecuting is as to comment the harshly, although speak fully, on legitimately supports if the evidence action and conduct accused’s the nature comments, to comment on as is accused’s counsel which the character of witnesses of the evidence and the Law 1093 produces. Criminal [prosecution] See 23A C.J.S. § 614, Md. 92 A. 2d 567 (1961). 200 See also Cicero

413 (1942); 6 2d 833 Md. 28 A. State, 181 (1952);Meyerson 1940). (3d ed. Wigmore, 1806 Evidence J. § required be confined to are arguments of counsel While trial, and fair and evidence on cases the issues arguments therefrom, of deductions reasonable freedom of speaking, counsel, generally liberal opposing There no hard-and-fast speech be allowed. should argument counsel of earnest which the within limitations beyond which well-defined bounds no confined must be may He discuss soar. eloquence an advocate shall not pleadings, assess the proved in the or admitted the facts credibility of parties, and attack the conduct or flourish may indulge in oratorical conceit He witnesses. metaphorical See 53 allusions. in illustrations and (1956). 463 Trial Am. Jur. § permissible upon general scope of

As a limitation Md. closing argument in Esterline v. 105 this Court (1907), 629, A. that counsel should not cautioned court, proper objection, permitted by over to state and he upon to state what facts not evidence or comment proven. of conduct have Persistence such course could may good grounds The furnish for a new trial. conduct of necessity largely in must of rest the control and trial presiding judge appellate and an court discretion judgment in no should case interfere with that unless there judge of a has been abuse discretion likely injured complaining party. to have character 66A. 2d at Md. at State, 112 Md.

In Toomer v. A- having threatening letter appellant was convicted of sent money “buildings and advised the victim that his to extort Attorney closing go up in The in his will all smoke.” State’s jury, stated: “Gentlemen of the fires County, buildings burned, have been have occurred this my duty it was to act this matter.” trial court require to retract the statement refused holding appellant exception. In took and on such refusal the had not made a statement State’s argument in outside the evidence as a reason or favor fact 414 — concerning predecessors closing the

conviction, stated our argument: unquestionably wrong for State’s

“It is argument any Attorney in to refer his to to by not to the witnesses or disclosed matter testified case, duty is by evidence and it his case, if facts in the his remarks to the but confine every by remark made counsel the heat of strictly applicable to the argument, evidence not offered, ground reversing for is to be held sufficient judgment, few convictions would stand. simply objection which was made were remarks to by officer of reason for a statement the State’s jury, and was taking action the case before outside of evidence not a of fact statement in favor of as a reason or the case of the accused. In the absence the conviction something misled or to show prejudice prisoner such influenced remarks not have been the lower Court would verdict, setting nor would this justified in aside reversing judgment warranted Court be Dunlop v. United appealed from. the case every States, 486, ‘If the Court said: 165 U. S. testimony remark made outside of counsel reversal, comparatively few ground were for a stand, in the ardor would since verdicts trial, even the advocacy, and in the excitement of occasionally experienced carried most counsel are temptation.’ See also Esterline away by this 292-93, 76 A. at 629.” 112 Md. at 105 Md. (Emphasis supplied.) summation, opening or in statement it be in

Whether improper passion are or “appeals class may be jurors an accused poison the minds of may so State, trial,” Wood v. deprived fair of a obligation (1949); has “the State’s A. 2d hearing making any remark within from to refrain apt instigate prejudice likely which 575, 584, Md. accused,” against Contee (1962), 486, A. 2d 823 (1960), 229 Md. 184 889, A. 2d 894-95 (1963); or, derogation denied, S. 841 cert. 374 U. unfairly trial, to is “calculated right a fair

defendant’s State, v. against Newton prejudice the defendant.” State, 123, (1924); 117Md. 71, 92, 132 Meno v. Md. 127A. 147 759,761 (1912). 435, 441, A. 83 by made every remark course, not ill-considered

Of trial, cause for during progress of the is counsel, even 12, 15, 2d State, Md. 40 A. 184 challenge mistrial. Jones v. or States, Dunlop 165U. S. 486 230, (1944),citing v. United 231 459, (1929);Dunn State, 144A. (1897); 156 Md. 350 v. Callan (1922); 129 State, State, 163, 117 A. 329 Freud v. 140 Md. v. State, supra, (1917). 636, Esterline v. Md. 99 A. 934 See also Dunlop quoting v. United State, supra, both and Toomer v. permissible comment the limits What exceeds States. case, even where the depends the facts each on v. general Shoemaker may classification. fall into the same (1962); v. 462, 468, 685 Holbrook State, Md. 180A. 2d 228 268-69, (1969). State, App. 265, 250 A. 2d 906 Md. 6 State, 66 App. Md. 259 A. 2d Reidy v. 8 (then Judge Murphy the Court of Judge Chief Chief Special Appeals), stated: to a fair fundamental

“It remarks calculated should make no against the defendant. unfairly prejudice the State, 435; 6 Md. v. State, 117Md. Holbrook Meno v. wrong unquestionably for the

App. And it is 265. refer in his or the witness testified to any matter not v. in the case. Toomer evidence disclosed hand, fact that On the other State, 112 Md. 285. argument to prosecutor in by the made

a remark necessarily compel improper does not jury was State, Conway v. be set aside. conviction that the Maryland unless it Rule is that App. Md. actually or were misled jury were appears likely to have been misled influenced to the prejudice by the of the accused remarks of Attorney, State’s reversal of conviction on this justified. ground State, Wood would not be v. 643; State, supra.” App. Md. Holbrook at 172, 259 67-68. A. 2d at supra;

See also Shoemaker Kellum v. 80, 162 473 (1960). Md. A. 2d may “prejudicial”6

Concerning what Court States, (D.C. 1969) v. United F. 2d 1061 Cir. Gaither (cited Cook) by appellant stated: applicable

“The we test for is whether assurance, say, pondering can ‘with fair after all stripping happened without the erroneous whole, judgment the the was not action from [Citing substantially swayed by the error.’ States, 750, 328 765 v. United U.S. Kotteakos (1946).] the of the The decisive factors are closeness States, 454, case, v. F.2d [citing Cross United 353 States, (D.C. 1965); v. United 338 456 Jones Cir. (D.C. centrality 1964)] 553, the F.2d 554 n.3 Cir. King by error, [citing v. the issue affected the 383, (D.C. States, 395 United 372 F.2d 1967)] Cir. steps mitigate the effects of taken to and the States, supra.]” 413 [Citing v. United error. Cross F. 2d at 1079. opening State, supra, prosecutor

In Clarke v. by expected elicit jury what he to the outlined statement witness; testimony from a him way unknown to and at she the defendant had married witness These testify against her husband. to refuse to elected was no nonprejudicial there because were held remarks part prosecutor. See on of the faith” evidence “bad reality’ “Prejudice and not as a shown as a ‘demonstrable must be ” 98, 28, State, App. 22, 245 A. 2d speculation.’ Md. 5 Baldwin v. ‘matter of citing Darcy Handy, denied, (1969), (1968), 351 U. S. v. cert. 252 Md. 729 101 33, 283, 286, (1956). State, 219 A. 2d 454, 242 Md. See also Bristow v. 462 34-35(1966).

417 (1953); Annot., 28 972 23A C.J.S. also A.L.R.2d Criminal by (1961). State, supra, In v. remarks Law 1085 Contee § appeal prosecutor reasonably were held calculated to there prejudicial. also prejudice were found See to racial (1932); (1956); 53 Annot., 45 306 1438 A.L.R.2d 78 A.L.R. (1956). State, supra, 996 In v. Am. Jur. Trial Shoemaker § closing advised eligibility possible parole for concerning the defendant’s parole likely jury to were held to have influenced the which Annot., 679 See 132 A.L.R. to the accused. also (1956), cited; 466 and cases 23A Trial Am.Jur. (1941); § (1961).7 C.J.S. Criminal Law 1107 §

In Riggins State, 165, 174, (1915), v. A. Apple 661, 666-67, restated v. Md. 59 A. 2d State, supra, v. Cicero it held was “ improper prosecuting officer personal ‘to assert his ” personal belief guilt accused,’ conviction although undisputed right urge his the evidence convinced mind guilt recognized. of the accused’s See Annot., (1931). also 75 A.L.R. 53 (cited

In Meno supra by appellant Cook), the conduct of the State’s interrupted who a witness during her injected cross-examination by a statement way of question answer to the tended which to connect with defendant hearsay crime but which as evidence was inadmissible had the attempted State it, to introduce (also prejudicial. was held State, supra Newton cited appellant Cook), were held prejudicial when, dialogue in a with the court as to whether or not testify the defendant could that an audit been had made, replied, he “I very have this tried traverser and heard him swear he did that not.” State,

In 603, Cook v. (1961), Md. 171 A. 2d 460 cert. denied, (1962), repeated 368 U. S. 970 questions the Fryson State, App. 320, 7. See (1973), also v. 17 Md. 2d 211 301 A. where closing argument in guilty remarks would “be if the were that defendant found he put probation” “highly prejudicial” on were and did not afford impartial the defendant fair and “a trial.” court sustained objection to the but other took no remedial action. prior in conviction where the defendant about a and the in defendant denied the conviction State thereafter conviction, proffer prove good the was held faith failed to improper prejudicial. highly and supra, State, v. where the Esterline In a number of support in witnesses testified self-defense defendant’s fight appellant immediately the “had marks of after the that closing fingers and the State’s on his throat” argument if he had known such evidence would stated that produced prove “he would have 100 witnesses to be offered fingerprints at were on the throat of defendant there no In Wilson improper. held time,” argument was such (1971) (cited by both State, 2d 214 276 A. 261 Md. Wilhelm), prosecutor Cook appellants, was the defense and testified that his a witness for summoned as during been threatened the course of own life had case; was investigation defendant and volunteered the number one lieutenant” “Henderson’s had been murder opinion that Henderson’s by evidence volunteered substantive “assassination.” Such prosecutor to be no different from comments was held prejudicial. prosecutor held to have been made App. 265, (1969), A. Md. 2d 904 Holbrook argument closing stated that defendant many times,” stand stated that “had on the witness been on had told him “the same version of the assault victim (without any evidence of such numerous occasions” “mentally fact), and the defendant was defective proven mentally being defective of his could fact battery on of assault and he had been convicted fact that were made in prior Three references several occasions.” prior for argument the defendant’s convictions closing battery going issue of his to other than the assault argument closing held “credibility” such Conway v. App. Similarly, prejudicial. rape, prosecution where A. 2d 178 previously with been convicted of assault defendant had closing rape and where the intent to prior argued that the to such conviction and made reference young girls about other “have to think [would] circumstances,” were held to have such remarks similar appellant’s “likely influenced the misled or prejudice.” State, supra, Reidy

In where “self-defense was the heart appellant’s closing and soul defense” and the argument really “There is no self-defense here. It is a stated: by fiction defense counsel.” Such reference to manufactured by counsel,” suggesting a “manufactured defense suborned perjury, appellant held denied the was to have a fair trial. State, App. 465, In Killie v. 14 Md. 287 A. 2d cert. —(1972) prosecution possession denied, Md. 740 a marijuana, its distribution and the maintenance of a Attorney “common nuisance” the State’s in final rebuttal argument appellant, public elementary asserted that the principal, using marijuana school was the lure of to entice young boys purposes. to his home for homosexual [There appellant having was evidence of the kissed an adult male.] Upon objection by defendant’s counsel to the reference to enticing young boys, Attorney changed the State’s it to argue “using [marijuana] get that he was this men there.” It was held that the introduction of the notion of homosexuality, especially part on elementary of an principal “boys” school “young boys” vis-a-vis added a totally foreign consideration to the irrelevancy case replete strong potential prejudice. with for unfair Glickman 190 Md. (1948), 60 A. 2d 216 closing reference made argument that “Philadelphia the defendant was a foreigner” was held nonprejudicial. Similarly, in Wood v.

A. 2d comments the State’s closing argument policy that “It is courts, it is the policy Attorney, of the State’s stop carrying guns. I every will jail gun,” send one to that carries a that “He joints at one of these [the where defendant] they carry guns,” happens that “as joints so often at these somebody got . . . somebody hurt because came there with a gun. trying That is what I up am gives break ... as God strength, me I up,” will break it were not found to be a actually finding the “were for that basis

sufficient likely influenced to have been misled or misled or were State, supra, in Toomer the accused.” And the of prosecutor concerning by fires which had the the nonprejudicial county in were held to have been the occurred by his reason “simply the State’s officer of a statement taking jury, not in the before the a for action case a reason the evidence the case as of fact outside statement argument for, in favor the conviction the accused.” or State, 216,195 532, denied, A. Cohen v. 173Md. See also cert. by Attorney where the (1937), U. a remark State’s 303 S. 660 closing argument that a bench warrant had been issued by nonprejudicial. held In the defendant the court was App. 70, 747, denied, 267 A. 2d State, 10 Md. Britton v. cert. (1970), question the Md. a Assistant State’s 730 you recall to a defense witness: “Do directed ” proceeding? testifying prior equally held on a was nonprejudicial. 630, State, 259, App.

In 11 Md. 273 A. 2d cert. Ott v. denied, (1971), closing 262 Md. 748 the type argument “I he think that is the stated: [Ott] theory pattern individual fits the of the State’s of the that person might typically type he is the who do case exactly theory case,” done under the the State’s what was appellant’s held to reference demeanor on the was be a alleged at the time of the witness stand and actions prosecutor’s argument as well That reference crime. lucky today we are here with a murder not “We charge,” closing were all held to fair comment 478, argument. App. Md. 292 A. In Peterson v. 2d 738, denied, (1972), testimony Md. cert. approach by a detective a who had been seen to that witness only occupant appellant was in which the automobile addict,” me to heroin was held was “known to be a nonprejudicial improperly on the and “even if considered merits, minimally impact its .. . cumulative on the was guilt ultimate or innocence.” issue App. 426, 302 A. 2d In Witcher cert. denied, reference made 269 Md. 768 a was concerning closing argument Attorney witness State’s police who lying but testified who had admitted truth, why been telling as to the witness had he Jury. Such was held to be taken the Grand statement before during oral made course of “fair comment misleading jury.” not Judge Horney, who State, supra, delivered Contee v.

opinion Court, stated:

“ granting of a . . . or refusal mistrial is [W]hile lying within sound discretion of the matter court, court, nevertheless, in addition to sustaining improper objection to an remark or misconduct, is also entrusted with further responsibility reprimand to caution the State’s exigencies may as the of situation the require jury and to forthwith the instruct to disregard the and unwarranted remarks conduct of attorney.” prosecuting the 223 Md. 165 A. at 2d at 895. State,

See also Westcoat v. 190 A. 2d (1963); State, supra; Newton v. State, supra; v. Holbrook Conway supra; Reidy v. supra; v. v. Killie State, supra. Judge (then Murphy Judge

Chief Chief of the Court of Special Appeals), court, in for that Conway, stated: plain think require

“We it too to discussion that prosecutor’s improper the were highly prejudicial, particularly so in view the of fact that appellant, by prior trial, sought motion to had to prior suppress the ground, conviction on among that it would jury others mislead the believing into present had that he committed offense because previously he had been committing convicted of a light, similar offense. this when jury told the that it should consider the fact that ’man; ‘This isn’t the young first time for this ‘He that was convicted assault with intent to

rape before,’ we think the occasion was one screaming for the out forceful interdiction of the judge, viz., jury an to the that instruction argument improper, why improper, was it was reprimand making a severe it. We, course, way calculating have no jury prior given appellant’s consideration rape. conviction with intent for assault We know, therefore, cannot whether proof considered such evidence as substantive appellant’s merely impeaching guilt or as evidence credibility a That was as witness. free proof prior conviction as to consider the substantive however, guilt is, entirely clear and we conclude of that likely was misled or influenced appellant’s that under prosecutor’s improper circumstances the Wethington deprived appellant of fair trial. See a (1968).] App. Md. A. 2d State, supra. [3 concluding rule we mindful of the In so prior might improper reference conviction reversible error where it such not constitute unlikely that it was importance minor thereby, prejudiced have been accused could strong that it evidence was so where State’s have improbable contrary result would been App. Md. jury. State, 5 See reached Lamar 414-15, App. 256 A. 2d at 186. at 594.” Md. supplied.) (Emphasis Judge Murphy, again the of Reidy Court Chief any only lack Appeals, pointed not the of

Special out court, part the but the on the of trial interdiction” “forceful prosecutor’s given by court the the trial to approbation He prejudicial remarks. stated: case, “Where, present prosecutor’s in the the as potential prejudicing a remarks had such clear trial, objection appellant’s right to a fair was they immediately ground on the that made thereto order,’ ‘absolutely improper and were out of we screaming think the thus created was one situation judge forceful out for interdiction of the trial the and, least, a to at the directive to apologize defense for the to counsel remark this being requested defense had all that counsel apology sought done. even without the But appellant, unlikely jury is not it that would prosecutor’s remarks, standing have considered alone, practical equivalent as the of an that the claim self-defense was far-fetched so utterly not is was devoid of merit. Had judge, therefore, referring trial prosecutor’s remarks, jury instructed the ’ ‘it improper remark, no may a case well different presented have been than that now us. But before light judge’s statement, viewed in the order apologize to refusal counsel, gave necessarily defense reinforced significa,nt prosecutor’s argument, substance to the likely with the result created the mind jury judge, prosecutor, the trial like the thought appellant’s claim of self-defense a ‘fiction manufactured defense counsel’ considerably strengthened conclusion which was prosecutor, when the without rebuke or correction court, interrupted from the defense counsel’s closing summation to the to state that his only improper, not remarks were not but the court they proper.” had ruled that were indeed supplied.) (Emphasis App. 178, A. 2d at 70-71. at When in first instance the remarks of the State’s appear significant prejudicial, do have been determining actually factor whether were misled likely were to have been misled or influenced to the accused is whether or not the trial court any appropriate action, exigencies took may appeared require, situation have to overcome the informing prejudice, likelihood of such as that the striking admonishing improper, the remark and remark was by jury disregard it. When such action has been taken the by found to have been sufficient the trial court and reviewing court, judgments have reversed. not been See jury State, supra, where the trial court told the Cohen v. concerning disregard the warrant the reference the evidence heard under oath determine their verdict from State, witnesses; supra, Clarke v. where the court from the jury guilt “from charged to determine the defendant’s and not the fact of his the evidence admitted from State, ; supra, where v. the trial court indictment” Cook jury evidence the defendant that there was no instructed crime; State, previously had been convicted v. Wilson jury disregard supra, where the court instructed Attorney’s testimony had been portion of the State’s which State, supra, upon In Newton v. the remarks volunteered. stricken; requested and the were no other action was motion not the failure to warn was court held that State, supra, ruled v. the court reversible error. Esterline proper were and he prosecutor’s remarks not objectionable The Court statement. “withdrew” weight gave due to the evaluation finding error no reversible upon judge probable effect the trial “of counsel, well of all the events and as remarks of State, supra, In Wood v. the State’s of trial.” circumstances willing apologize if he stated that only improper issue were and told the guilty carrying whether the defendant was “was weapon.” concealed taken the trial

Contrariwise, where such action was no grounds for existed were prejudice found to have court the State, supra, and Meno v. v. reversal. See Shoemaker respectively overruled the trial court supra, in both of which to strike out objection denied a motion the defendant’s prejudicial; and were found to have been the remarks which merely told State, supra, where the trial court Conway v. previous conviction.” dwell on the prosecutor “let’s not Reidy mandated Similarly, have been reversals State, supra, State, supra Killie v. supra, Holbrook only failed to take curative not where the trial courts approbation highly action, but, fact, gave prosecutor. prejudicial remarks of the DeChristoforo, 94 Donnelly v. S. Ct. In the case of recent Supreme (1974), held that the United States Court the by prevented given trial court curative instruction Attorney closing argument from District being denying respondent “due prejudicial and from process.” response argument by counsel for DeChristoforo jury: they “I told the don’t know what

District they hope you by way They want of a verdict. said that do you guilty. quite frankly they I that find him not think that hope you guilty something him find a little less than jury first-degree The murder.” trial court instructed closing arguments were not evidence for their consideration no and further instructed the that there was evidence support Attorney’s whatsoever the District statement disregard respondent and the was instructed to The it. guilty degree. was found of murder in the first Rehnquist, majority opinion Mr. Justice who delivered the Court, stated: “This is not a case in which the State has denied a specific defendant the provision benefit of a of the Rights, Bill of right such as counsel, Argersinger Hamlin, 25, U.S. 92 S.Ct.

32 L.Ed.2d 530 or in prosecutor’s which the prejudiced specific remarks so right, such as the privilege against compulsory self-incrimination, as to amount to a denial right. of that Griffin v. California, 380 U.S. 85 S.Ct. 14 L.Ed.2d (1965). (Footnote omitted.) specific When guarantees Bill Rights involved, this special Court has taken care to assure that prosecutorial way conduct in no impermissibly infringes them. But here only the claim is that a prosecutor’s remark respondent’s about expec- tations at trial itself so infected the resulting conviction make the as to

with unfairness process. do not believe that due We a denial proceedings this case the entire examination of Ct. at 1871. 94 S. supports that contention.” He continued: special pains to addition, court took

“In the trial any impression that the could consider correct case. evidence prosecutor’s statements as customary, previously prosecutor, as is had evidence, not jury that his told the reemphasized judge specifically and the trial judge jury’s point. Then directed attention challenged here, particularly remark unsupported, and admonished it to be declared ignore Although some occurrences at jury to it. clearly prejudicial may too such effect, mitigate their curative instruction hardly character.” in this case such comment omitted.) (Footnotes at 94 Ct. 1872. S. here, prosecutor’s remark observing “the

After one, in an ambiguous was but one moment admittedly an disapproving by specific followed trial and was extended instructions,” he continued: arguments of closing arguments, like all

“Such toto carefully in counsel, constructed are seldom frequently event; improvisation results before meaning than imperfect less syntax left general crystal these observations clear. While misconduct, they do prosecutorial way justify no lightly infer that a suggest a court should not ambiguous remark to have intends jury, sitting damaging meaning or that its most exhortation, through lengthy will draw damaging plethora of less meaning from interpretations.” Ct. 94 S. at v. distinguishing Brady In the facts from those Maryland, (1963) Pate, Miller U. S. 83 386 U. S. 1 (1967), it was further stated: the introduction of there was neither

“But here specific misleading important evidence prosecution’s nor the nondisclosure case-in-chief specific evidence valuable to the accused’s defense. There were a few instead brief sentences prosecutor’s long expectably hortatory closing might might suggest which not to a respondent unsuccessfully sought that the had bargain charge. nothing for a lesser We find Brady suggest process due easily is so denied.” 94 Ct. S. at 1873. important significant

Another factor prej- where might udicial remarks have been made is whether or not judgment “substantially swayed of conviction by was error,” or where guilt evidence the defendant’s “overwhelming.” Berger States, (1935) (cited United 295 U. S. 78 appellants Wilhelm),

both Cook and the Court characterized the conduct of the United States follows:

“That prosecuting United States attorney overstepped the bounds of that propriety and fairness which should characterize the conduct of an officer prosecution such in the aof criminal clearly offense is shown the record. He was guilty misstating of facts his cross-examination of witnesses; putting of into the of things mouths such they witnesses which had said; suggesting by not of questions that statements had been made to personally him out of respect court, in of proof which no offered; was pretending to understand that witness had said something which he had not said persistently cross-examining upon basis; witness assuming prejudicial evidence; facts not bullying arguing witnesses; with and in 428 thoroughly conducting himself

general, of at 84. improper manner.” 295 U. S. indecorous referring Court, the situation as “one which after repressive and, measures rebuke and called for stern successful, granting perhaps, if were not for the of a these impossible say the evil mistrial,” “It is held that: upon jury of these acts of misconduct was influence judicial 295 mild action as was taken.” U. removed such S. at opinion Sutherland,

Mr. who delivered the Justice Court, did, however, state: prejudice to the cause

“In these circumstances highly probable we are not the accused is so assuming If the case justified in its non-existence. strong, or, Berger as some courts against had been ‘overwhelming,’ guilt said, evidence of his have Compare might reached. a different conclusion States, 567, 573; Fed. Johnson 258 Fitter v. United 679, 685; States, People v. 215 Fed. v. United 201-202; 900; Malkin, 185, 164 N. E. Iowa N. Y. 250 330, 333; 93 N. W. 295. Roscum, v. 119 Iowa where the Moreover, not here a case we have attorney slight was prosecuting misconduct instance, where single one such but or confined to a persistent, with a pronounced and misconduct upon the which effect probable cumulative inconsequential.” 295 U. disregarded as cannot be S. at 89. Co., U. S. Socony Vacuum Oil 310 v. States United See also (3d 586, Leftwich, 461 F. 2d 590 (1940); v. United States

150 (1972); v. United Gaither 915 denied, 409 U. S. Cir.), cert. Conway v. State, supra; v. States, supra; Peterson 646, A. 2d 695 App. supra; v. Chandler (1970). well State See as denied, Md. 743 (1969), cert. (1973).8 345-46, 210 N.W.2d Johnson, 2d 60 Wis. denied, (3d Cir.), cert. Leftwich, F. 2d 8. In United States ever, perfect rarely, if observed: “Trials are the Court 409 U. S. 915 new improprieties call for a do not counsel probably they gross defendant....” trial unless 461 F. 2d at 590. are so 429 instance, any considering whether, in first In the effect of had to the remarks attributed defendant, against prejudice unfairly creating judge, given to the that the trial recognition must fact be where are the forensic adversaries presides in the arena who — in position evaluate and assess engaged, is in the to best made their the remarks are the context which — they relationship the trial whether to factors other State, State, supra; prejudicial. Lusby v. v. Cook were fact 893, (1958). 191, 195, 2d 141A. 895 217 Md. peculiarly trial trial court is environment of the alleged judge superior position the effect of

in a to 571, State, App. Md. v. 18 improper Johnson remarks. 428-29, denied, (1973). 574-75, 426, 270 Md. 740 A. 2d cert. 308 117-18, 606, App. 109, A. 2d State, v. 5 Md. 245 See Nelson (1968), denied, (1969); State, 1 Avey cert. 252 Md. 732 v. 611 178, App. 188, 614, A. 2d 619 rev’d on other Md. 228 (1968). grounds, 385, A. 2d 240 107 (9th 747, 2d States, 293 F. 749 Orebo United See also v. 1961), denied, (1962); v. 368 U. S. 958 United States Cir. cert. (7th 1939); v. United Holt, 2d Tuckerman 108 F. Cir. 1923). (6th States, F. Cir. judges certainly responsibility mindful of the

The trial holdings in Contee unto them under the entrusted appear prejudicial supra if the remarks to be reprimand to as the defendant caution may require exigencies of the situation instruct the disregard remarks. such unwarranted in a is request A for a mistrial criminal case addressed discretion of the trial and the exercise of its the sound court discretion, involving prejudice question in a which case infringe upon right trial, might of the defendant to fair appeal on reviewable determine whether or not there been an abuse of discretion trial court has 260-61, denying State, 212 Md. the mistrial. Basiliko v. (1957). 2d court 129 A. decision denying will discretion a mistrial not exercise its appeal on unless it is clear that there has been reversed supra. Lusby to the defendant. See Horney, opinion Judge Court, who delivered in of the quoted approval Lusby, with from 53 Am. Trial 971 Jur. § (1956) as follows:

“ impossible ‘It is all define the circumstances may urgent necessity justifying constitute of discharge declaration a mistrial of [the and] Except a in a criminal case. in the found cases, decided matter is left sound to the presiding judge, acting discretion of the under his office, having regard of due rights oath power ought accused and the state. The to be used caution, greatest urgent with under circumstances, very plain and for and obvious ” 196-97,141 217 at A. causes.’ Md. 2d at 896. State, supra; Contee State, See also v. v. App. Smith 4 Md. 146, (1968); State, 241 A. 2d v. App. 555, 728 Matthews 3 Md. State, (1968); 454, 240 A. 2d 325 v. App. Watts 3 Md. 240 A. (1969); dismissed, Barton 214 (1968), appeal 394 U. S. 2d 317 State, 52, 2 App. 330, denied, Md. v. 233 A. 2d cert. (1967). 733 court, discretion,

The trial in the exercise its should only declare mistrial where necessity there “manifest act,” 880; for the v. 312, Cornish 272 it Md. 322 A. 2d granted should never light transitory be for reasons which do not result real to the accused. v. supra. Johnson

This, course, does not absolutely mean that we are by judge’s bound the trial determination on a motion for mistrial, his determination that the remarks were nonprejudicial. appellate succinctly

What Illinois court stated Mackins, 24, recent case of People Ill.App.3d v. cases, N.E.2d seems accord with when our they stated:

“The tendency reviewing Illinois, courts upon proposition based the correct the trial superior opportunity court has a to determine propriety argument, these issues are final is that a clear abuse generally the trial court absent left to Smothers, (People v. 55 Ill.2d of discretion. ‘ * * * impractical 324.) It has been held 302 N.E.2d may guidelines lay for what what definite jury.’ (People arguments v. may not be said Ill.App.2d 100, 110, Gilmore, 254 N.E.2d Ill.App.2d 205, quoting People Wilson, 116 from 472.) Furthermore, the mere occurrence 253 N.E.2d improper does not itself constitute There must be an additional reversible error. be reached. If we element this conclusion to say the assailed constituted cannot (People in the ‘a factor conviction’ material 374, 390, 363); Clark, 288 N.E.2d have 52 Ill.2d must in to the accused’ resulted ‘substantial Nilsson, 244, 248, (People v. 44 Ill.2d 255 N.E.2d 432) verdict would been different or that ‘the have argument not improper closing been had the * *’ * (People Trice, Ill.App.2d 310, 319, made necessarily 276), we 262 N.E.2d then must conclude prejudicial no error from resulted the 46-47, N.E.2d at Ill.App.3d at argument.” 17 background we turn to a consideration With this now — judges gave in neither of the trial instant cases which respective concerning juries instructions to the improper respective prosecutors. alleged remarks

The Wilhelm Case opening in his When assistant cry police protection” reference hue and made to “the — your jury “chance this is advised the that this their something it,” appears it that his occasion to do about “carefully in toto remarks were not constructed before syntax in left improvisation event” and his “result[ed] meaning crystal Donnelly v. imperfect less than clear.” might Indeed, syntax DeChristoforo, supra. in used it suggest “slip at tongue, most a of the not unknown in extemporaneous speaking.” Orebo v. States, United supra, citing 1944). Pacman v. States, United (9th 144 F. 2d 562 Cir. The “police protection” reference to seems itself ambiguous, although had theretofore advised jury that the charged crimes robbery, assault with rob, intent resisting arrest and violation handgun police law all involved a officer as the victim of the designated best, crimes. At totality opening of these remarks could be concluded to be an invocation of “law and order” an or exhortation unto the duty,” “to do their appeal to have Annot., law enforcement. See 78 A.L.R. (1932).

In App. 555, Matthews 240 A. 2d cert. denied, appellant Md. 750 contended that the prejudicial trial court committed failing error in grant upon motion for mistrial based the State’s comment to the closing argument protective that the “acts as a force to the Montgomery County.” citizens of The Court of Special Appeals found that there was no abuse of the failing discretion vested the trial grant court upon argument. motion based such an (Mo. Spears, 505 1974), State v. S.W.2d 92 prosecutor, closing argument observing after first jail, jury: defendant was told the “Ladies and Gentlemen, all this talk about crime and lack of law right you. enforcement ends here with The defendant you. presented before you. evidence has been You are judge guilt now the sole of the defendant’s or innocence. If you guilty going you find the defendant I am to ask in all justice jail to send him back that over there where the burglars waiting objection other to be tried.” After an jury the defense overruled told the that asking justice right “We are for now.. . . But now the State justice you of Missouri asks and insists on under the law as prejudicial. see it.” Such remarks were not held to be Feiling, Super. 207, In v. 214 Commonwealth Pa. 252A. 2d 200, denied, appellee’s 252 A. 2d 200 allocatur robbery During conviction for armed was affirmed. his

433 summation to the told might position “they place having themselves in the been court, holding robbed.” The that there was no abuse of part court, on discretion trial which found the sufficiently harmful, they if indeed remarks “not be harmful all,” in the law at stated:

“Although appeals passion are not approved, to be we have held that a District arguments, in his proper limits, within argue may for law and order and remind the danger community posed by persons prone to resort to violence. Commonwealth v. Pa.Super. McHugh, 568, 187 (1958). 145 A.2d 896 We hold that those limits were not exceeded in the present although case Attorney’s District remarks were jurors directed to the individual community. members of the Generally it is for the judge to determine whether such remarks are prejudicial so require as to a new trial on that ground alone, or whether their effect was sufficiently attenuated the rest of the as to have no effect on the verdict. Kuchinic v. McCrory, 620, 422 Pa. (1966); A.2d 897 Smith v. Evans, 421 Pa. (1966).” 219 A.2d 310 214 Pa. Super, at 252A. 2d at 203. Guajardo State, (Tex. v. App. S.W.2d 259 Crim.

1963), appellant where the had been convicted of the murder policeman, prosecutor, of a opening jury, mind, stated: “So bear you are the your community. conscience of going speak You are out community for this and let the exactly rest of the state know community what this people thinks about that kill law officers.” Such remarks were “clearly plea held to be permissible law enforcement and holdings under the Scarborough State,” (Tex. App. S.W.2d 886 Crim. 1961), State, and Lockett v. 155 Tex. Crim. 231 S.W.2d (1950). See also Parks v. (Tex. 400 S.W.2d 769 1966). App. Compare Crim. Pennington with (1961); Tex. Crim. 345 S.W.2d 527 Jackson v. Commonwealth, Ky. (1946); 192 S.W.2d 480 App. 323, (1954); Emerson v. 90 Ga. 82 S.E.2d People Farrar, App. 294, (1972) 36 Mich. 193 N.W.2d 363 (each Wilhelm). appellant In of which was cited prosecutor Pennington closing argument jury: in the told the County expect you put people “The man Nueces this away” ; prosecutor jury: in and Jackson told “Ladies gentlemen jury, you being are watched the men county they by your and of this so women can tell your you men verdict character and the kind of and women county” ; prosecutor jury: in told the Emerson ” ; get “Let’s stern and severe with these damned ‘coloreds’ Farrar, involving a and conviction felonious assault that, upon police officer, a told day they’re [policemen] pigs people “Every called they with fists and words. You know assault them their things people charged in. bring don’t Those are never these bring things They with don’t these into court offenses. why they really happen. point is the reason unless actually they’re happened as the officers here is this happened.” added, if the it He “that defendant testified that police opinion were innocent opinion my in the right be These charge, we would not here now.” of this stating personal opinion of the “subtly police held to converted the were have presumption guilt.” a See presumption into of innocence (1962), concerning prejudicial Annot., A.L.R.2d 1132 attorney’s a prosecuting effect of a community expect a city, county want or people or of a conviction. Wilhelm, involved an assault supra,

Kellum testimony upon in which battery police a officer resisting had used force a the defendant disclosed Attorney read closing argument State’s lawful arrest. a giving description magazine a article jury eulogy succinctly described as which “police can officer” synthesized and perhaps somewhat hypothetical of a police officer. idealized Judge Court, citing

Chief Bruñe for this after from holdings in State, swpra, v. Toomer v. Glickman supra State, supra, and Woodv. stated: description

“In case is clear the instant it that objected was not evidence record outside the which tends to connect the with the defendant crime, by- nor evidence that the trial was dominated passion. prejudice and While the statement could designed sympathy have been to arouse the of the general, policemen in it is difficult to see prejudiced how the could have been misled or against reading Kellum of the . . . because of it.

jury, representing it as does the collective experience community, may fairly of the be presumed known, general, to have the varied policeman tasks and lot of a known to have by police Though essential needs filled officers.

reading was, think, certainly of such effusion we should, indeed, not to be commended and not have permitted case, been in the trial of we any persuasive power unable find in it such significance might expected sway jury a intelligence ordinary reasonable human experience. are, therefore, We unable to conclude prejudice actual resulted from its reading.” 223Md. at 162A. 2d at 478. State, supra, appellant Westcoat had been policeman murder of a

convicted of the and it was contended, alia, appeal inter on the trial court had erroneously permitted argue the State’s jury making improperly “slaying a reference to the policeman” and a characterization of the slain poor policeman as “this officer.”

Judge Marbury, opinion Court, who delivered the for the stated: applicable principle here

“The involved is set out 80, 87, Kellum Md. 162 2d A. 473: something ‘In that the the absence of to show was misled or influenced to the prisoner by such remarks the lower justified setting Court would not have been verdict, aside the nor would this Court be reversing judgment appealed warranted from.’,

citing State, 112 Md. 76 Atl. Toomer v. Bruñe, Court, point Judge for the went on to Chief objected to, although the statement out reading good an advertisement which listed the (the police qualities needed for officers defendant assaulting policeman) having been convicted allowed, possibly quite should not have been this jury ‘sway a could not see how it could Court intelligence ordinary and human reasonable page experience.’ 223 Md. at 88. We find that applies They principle here. did not exceed the same permissible argument.” 231 Md. at bounds of 369-70, 190 A. 2d at 546-47. record, review, print we

In our made from the cold weight judge give due to the conclusion of the trial who must — presentation witnessed the and heard the actual remarks — they made, in in the in which were the trial arena context — improper prejudice. alleged The remark and who found no possible to a invocation of “law and at best an introduction order,” exhortation or the commencement of an unto duty,” inception appeal jury of an for law “to do their — was but one sentence the extensive enforcement proceedings, singularly unrepeated. made and See Chandler State, supra. promptly objected, When counsel the trial judge go admonished the “not into the anything police protection or else.” situation about officer alleged improper statement was uttered. The Thereafter no interruption by objection, the remarks the bench any conference and the abandonment of reference to the idea apprised jury the trial court had “vetoed” the idea propounded. Any proclivity part on the of the harangue judge continue such an terminated. The was advantageous position to evaluate in the most was remark; by ruling he potential prejudice found from the he the likelihood If environment had sensed none. in the trial duty with any prejudice he would have carried out the — Contee, supra under and of he entrusted which was certainly which he aware to instruct disregard remark; exigencies did of the situation such cautionary appear require not him to such a instruction. agree. We nature,

The remark was different both its content and found, per materiality from those remarks which have been se, “screaming prejudice. It one to have constituted was not judge” out for interdiction of the trial as was the forceful Reidy Conway. found to have existed State, supra, principles applied in Clarke v. Westcoat v. State, supra, State, supra, State, supra, Kellum v. Wood v. State, supra Glickman v. supra, Toomer v. controlling. appears here The isolated remark which to have appeal enforcement, been initiation of an for law or “for order,” duty,” or unto law “to do their did not mislead or influence the

appellant. concerning guilt appellant’s was not

The evidence “close,” “overwhelming.” was rather The remark was but proceeding “unimportant” and was “no there evidence by prejudice passion.” See dominated Wood v. proceedings compels of the entire supra. Our examination opening that the remark made in the conclusion statement defendant’s trial did not infect the with unfairness nor was likely prejudice him. Donnelly DeChristoforo, it to See supra; supra. Conway v. purpose

Although opening of an statement is to apprise, succinctness, with reasonable the trier of facts of questions expected proven, involved and is what to be opening such statement does not need to be limited to a expected factual recitation of what is to be elicited from the prospective witnesses. Counsel are entitled to make what — part opening rhetoricians call an exordium that you prepare intended to make the heed listeners and to them for that which is to follow.9 We suggest do not to mean performing given artists be range” a “broad in their advocacy. efforts depend at Each case must on its own — peculiar prosecution facts and counsel both for the as well — enjoined as the defense eloquence their to circumspection, in their lest they enthusiasm for their cause likely create a condition apt instigate which is or to — prejudice against prosecution. the accused or the 173, 179, said: Lord Halsbury, L. C., Sharp Wakefield ^[1891] A.C. “ ‘Discretion’ when means it is said that something is to be done within the discretion of the something authorities be to done according to justice, the rules reason and not according private opinion; law, to according to and be, not humour. arbitrary, vague, It is to not fanciful, legal regular. but And it must be limit, exercised within the to which an honest man competent discharge to ought of his office to confine himself.”

We find no abuse the discretion vested in the trial court refusing grant mistrial, nor error the court’s failure, sponte, give sua instruction disregard the comments made.

The Cook Case Although it is fundamental that the of counsel questions in should at all times confined to the be issue and relating the evidence thereto adduced at the trial and such inferences, analogies reasonably deductions can properly therefrom, proper drawn it is for counsel to — argue though even evidence of such has facts formally not been introduced of common matters knowledge judicial take matters of which the court can (1956). notice. See 53 Am. Jur. Trial §§ Stryker, Advocacy 9. See L. The Art of A Plea for the Renaissance of Lawyer, (1954). the Trial Ch. Ill at 51

439 “boilerplate” charging jury concerning a basic given entitled, weight they be the evidence is that as sense, jurors, use own common their own their experiences knowledge ways in life their own and (1955). See 88 Trial 389 When affairs of the world. C.J.S. § closing argument that told the “Last year thirty people some three hundred were murdered in City,” Baltimore he made reference to a matter within their proclaimed just days knowledge, bold headlines 19 previously.10 “judicial notice” is used to

In a the term broad sense (which possess) knowledge courts judicial denote both (which every individual knowledge informed common knowledge may be possesses); common and matters proof. Bone v. without See applicable to the case declared 916, (Mo. 1959), Corp., 322 924 General Motors S.W.2d concerning expectancy” “life where the court observed that jury actually knew the would be unrealistic that it plaintiffs expectancy, but that a would have actual years knowledge person a 35 knowledge, and common might age diseases abnormalities with no constitutional years in the expected number to live for substantial be unexpected calamity. absence of knows, and may everyone else be reminded of what

Jurors upon which are they may and take notice those facts act notoriety of common general as to matters of such Adams, App. P. 2d 1 Ariz. 400 knowledge. State v. Mining Co. v. (1965), citing Verde Extension United 362 (9th 1922); Littlejohn, F. Cir. and 53 Am. Jur. Trial 279 223 § (1956). 2d Scarborough, Cal.App.2d P. In People v. kidnapping, charged with defendant was where the closing prosecutor told rape robbery, “Now, thing a crime of this argument: is a terrible it “Evening 10. The “Baltimore as well as the Sun” and the Baltimore Sun” prominent each, January 18-, 1973, “News-American” accounts news on carried City in 1972 that 330 murders had been committed in Baltimore 1971; reported seven well more than had been committed 9,584 City total of in 1972. been in Baltimore robberies had committed streets, people occur and when read kind can on our about things newspapers, they we in know remarks make ’ it, country coming ‘Something ‘What and about is this to? ought you opportunity have do to be done.’In this case to respect with least one of such be done at what should appellant interrupted by crimes.” When counsel refer objection, the counsel not to court admonished other cases at all. court, opinion,

The stated: its of

“We do not believe that attorney legitimate exceeded the bounds of district People Gingell, argument, v. 211 for as stated 541, 532, 70, page ‘It page at 296 P. at 73: has Cal. range many held in of been cases illustration, discussion, argumentation very knowledge wide, may and that matters of common may referred made to the be to and allusion be duty jury. People of prevalence crime and the 435, Burke, Cal.App. 72, P. there v. 18 102 and cases * * P. 2d at 79. cited. 340 prosecutor made to the number of The reference the upon in 1972 based in Baltimore murders committed publicity given data was but direction widespread such by was within their common him to the of a fact that knowledge.

Compare Williams, 107 Ariz. 485 P. 2d 832 State v. “the (1971), to the where the stated year up Phoenix last 116%.” Arizona rate went crime support no court, pointing that there was data out prosecutor, stated: bald statement made repeatedly reference held that a has been “[I]t attorney argument to the prosecuting in his range improper. The prevalence is not of crime very argumentation is wide and discussion and knowledge may referred to matters common prevalence may be allusion made Burke, duty jury. People v. 18 crime and the

441 435; Scarborough, 171 People v. Cal.App. 122 P. Elbert, 76; P.2d Cal.App.2d 186, State Anno., [Mo.]; see 78 A.L.R. at S.W.2d P. 2d 1467.”485 at State, 168 148 S. E. Ga. Fair

See also jury in final there prosecutor told where the urged the Georgia in murders were 561 appellant. The sentence on the the death imposition of similarly pointed the statistics out that Georgia court were not matters referred Solicitor General which the judicial knowledge could that the court take such common although proof, without cognizance of their existence subject-matter was one of if the would be different matter take notoriety the could public that court such judicial cognizance thereof. prosecutor he did not

Similarly, when here stated that the people city were in with many robbed the “know how widely making weapons,” again he reference data was asking jurors publicized in the for the media and effect which were within their common of matters “recall” knowledge and awareness. people murdered

That Charles Dean had been one of the by testimony; the that well as 1972 was established he as affectionately Conyer, “Papa,” were called James argument the “defenseless” was a valid to be made from concerning description the how and evidence about Dean upon by “Papa” Conyer been set had four assailants. eye; he (Conyer) was blind one had borrowed a with dollar purchase pint Colony of Italian wine which to Swiss singular indeed, personal alcoholic refreshment his the was by property taken the robbers. “young toughs” could be

That the assailants described as by testimony abundantly supported concerning was Conyer by of manner of the confrontation Dean and their testimony from demeanor of the robbers and and nature co-defendant, given appellant and a both the Cook Beaty, who only Michael Walter undertook to exonerate not himself, well, and but Cook as from demeanor co-defendant,

appearance Mitchell of another Leonard who, appellant, Anderson, when not to called elected testify. supra, appellant, time on Ott v. first closing objection

appeal, two instances the State’s made argument prejudicial. he were which contended

Judge Anderson, opinion who delivered the for the Court Special Appeals, stated: * * prosecutor but

“The first was when the stated Ott) (Mr. type I he is the of individual think that pattern theory case that fits the State’s type person might typically he is who exactly theory do what was done under the Appellant case.’ contends that this refers to State’s improper. it prior his convictions and was therefore reading A the record discloses this apparent It is not correct. from contention referring record that appellant’s demeanor on the witness stand alleged at the time crime. The other actions ‘We was when the stated that instance today lucky we here with a murder are not charge.’ He then remarked such situations big crime make Baltimore a area. We feel these áre fair comment certainly They do not merit are neither reversal. Day misleading prejudicial appellant. nor See State, 334; State, v. 2 Md. v. App. 6 Md. Holbrook State, Chandler v. App. 265; App. 7 Md. 646.” 11 App. (Emphasis Md. at 273 A. 2d at supplied.)

When made reference to the Assistant State’s “young toughs” argument patent it is that in his he was appellant referring the demeanor of the and two of his called in his and the co-defendants as witnesses behalf actions at the time of the assailants homicide robbery. — early stages

In the of Cook’s trial connection with — judge jury opening instructed the that statement ; lawyers by was “not evidence” he what them the is said to — anything by jury that said counsel further advised — closing argument defense State or the whether for the case,” “closing argument in the that is was “not evidence implies; argument persuade exactly merely what the word you . . .” beginning at of his assistant jury testimony from the

summation told the very witness and the evidence from the exhibits “is all stand you your verdict,” again will use to determine he telling jury you advised “what I am now is not evidence.” State, supra,

What the Court observed in Esterline v. “It presumed body is not competent to be that a and honest men, try upon sworn to the issue of the traverse the evidence produced permit before them would the statement finding,” particularly influence their applicable here in view of the fact that the was on three occasions advised court that the statements of counsel were not evidence. State, supra, Judge Thompson, Witcher v. writing for Special Appeals,

the Court of stated: Maryland “The rule concerning misstatements of law closing or fact in argument a appears is that unless it actually likely misled or was to have been misled or influenced to the accused, judgment reversal of of conviction will not be justified. Holbrook App. 265, 6 Md. 250 A. 2d 904. See Reidy App. 169, 259A. 2d 66. If we assume the to have been improper, the trial court’s instructions to concerning arguments statements and of counsel evidence, not to be considered and his direction that they find only their you facts from ‘what have heard from the witness stand and the exhibits received,’ which have sufficiently been eliminated 444

any possibility prejudice.” App. at 302A. 2d at 708. Lloyd Stryker Advocacy Paul in “The Art of A Plea for 11 Lawyer” concerning closing

the Renaissance of the Trial arguments stated: high point

“The summation is the in the art of advocacy; it is the combination and the culmination many of all of its elements. It is the climax of the opportunity case. It is the to rescue a cause until perhaps seemingly every that time lost. It calls for possesses. skill the It advocate calls for more than courage, testing skill it is a summons to his character, ground logic of his a trial of his reasoning powers, memory, patience his his and his tact, ability express convincing himself in words; short, assay every power it is an persuasion possesses. wonder, then, he Small great there have been few summations.” inapposite The facts here are to those Viereck v. United States, (1943); States, 318 U. S. 236 Brown v. United F. (D.C. 1966); 2d 242 States, Cir. 249 F. 2d v. United Handford (5th 1957); States, (8th Cir. Turk v. United F. 2d 1927); Sawhill, People Cir. 299 Ill. 132 N. E. 477 (1921);(all appellant). prosecution cited Viereck was a failing register “foreign agent” for as a and the United impassioned plea reminding States made an jury, war, harsh, cruel, war,” “This is murderous plotting very there were those at moment their and his death. In Brown the told the that unless they reached the conclusion that had defendants police city assaulted the officers “then this [District Handford, must have martial law.” Columbia] prosecution possessing liquor, where untaxed circumstantial, injection of a evidence was addition to the epithet, racial made an found to be prejudicial blaming drunken drivers the defendant for VI, Closing Speech, pp 111. Ch. accidents, particularly accidents to responsible highway for liquor violation, Turk, another law children. must have been a argued that the defendant he sold 100 to 300 bottles in beer because wholesale dealer goes you guilty “If man free every night other sweeping fire of the crime wave adding flame to the more prosecutor made reference in country.” In Sawhill outbreaks of the inhabitants who his to lawless buildings in destroyed public other communities had charged following juries persons failure of to convict being where the defendant with atrocious crimes running game.” prosecuted for a “confidence only closing argument in his made The in Cook from the facts which legitimate inferences reasonable and evidence, from which were of been offered in the facts had common general notoriety as to be matters of such cognizance knowledge within the and matters own from their observations. advantageous similarly in judge was the most

The trial potential from the remarks position evaluate refusing defendant; by rulings in prejudice to the cautionary none. instructions grant he found His a mistrial coupled when the statements of the case with at the outset prosecutor concerning what counsel the fact that exigencies evidence, did not from the was not stated him, give any sponte, require sua additional situation jury. cautionary case are facts Cook’s advice principles applied in Donnelly v. controlled DeChristoforo, supra; State, supra; Clarke v. v.Wood State, supra. State, supra; and supra; v. Esterline v. Cohen against well, Cook was Here, evidence proceeding “overwhelming,” was “no evidence of a there passion.” See Wood by prejudice and dominated proceedings of the entire convinces supra. examination Our closing argument were not made us that the remarks scope permissible comment. beyond the Burton, who delivered Mr. Justice The statement of Supreme majority opinion the United States Court particularly Handy, U. S. seems Darcy appropriate to the cases of both and Cook. He Wilhelm stated: ready

“While this Court stands to correct violations rights, of constitutional it also holds that ‘it is not asking showing too much that the burden of sustained him essential unfairness who injustice have the result claims such and seeks to aside, sustained not as a matter of set and that it be speculation reality.’ but as a demonstrable Adams McCann, 317 U. S. ex rel. v. United States also, 427, 431; York, See v. New 319 U. S. Buchalter California, Stroble v. 343 U. S. 198. Justice Holmes, speaking a unanimous Court in Holt v. 245, 251, ‘If States, 218 U. S. cautioned that United prejudice corruption opportunity for or is the mere they exist, will presumption that it be to raise a under of maintain the conditions hard to ” day.’ at 462. present 351 U. S. judgments affirmed;

In No. 277: paid by the costs to be appellant, Wilhelm. judgments affirmed; In No. 283: paid by the be costs to appellant, Cook.

Levine, J., dissenting:

Having appellant concluded that Wilhelm should be granted trial, respectfully new I dissent No. majority recognizes,

As the itself if remarks made prosecuting attorney opening in an statement include facts plainly inadmissible, if that are reversal will follow “ making, . establishes . . bad faith their accused resulting prejudice . . .” substantial therefrom. Clarke v. added). 11, 20, (1965) (emphasis Md. 207 A. 2d 456 Yet, majority of this Court nor of the Court of neither Special Appeals fully applied that test to the statements that, premise proceeded on have here. Both made agree. I event, must shown. do not prejudice be upon the of such resting decision absence their misapplied our earlier decision have prejudice, both courts (1949). In 643, 65 2d that A. in Wood v. during argument to case, made involved comments which statement, we said: opening rather than prejudice or appeals quite to class true “It may poison the improper passion so may deprived of jurors that an minds of accused However, appears it unless a fair trial. likely have been actually or were

were misled the accused of misled or influenced Attorney, this Court of the State’s remarks reversing judgment justified will not be intemperate remarks solely because conviction advocacy. . . .” made in the ardor 192 Md. at added). (emphasis “intemperate mere here with are not confronted

We advocacy.” It is difficult ardor made in the very atmosphere even exist at imagine could how delivering first of a trial. The outset statement, only presumably opening paragraph Opening trial had commenced. after moments attorney, by plaintiff’s prosecuting or the statements “script” case, may only well be the to in a civil counsel any trial of case. in the utilized sloughed off as a mere made here cannot be

The remarks I “improvisation.” “slip tongue” or as an Nor am able of the by majority. “exigencies” the On the referred to to detect the only message infer the intended to be contrary, that one can “ carefully conveyed prosecutor’s . . by the words was . Donnelly v. before the event. . constructed toto 1868, 1873,40 L.Ed.2d DeChristoforo, U. 94 S. S. Ct. (1974). agree majority I with the below that improper per se, I hold but would also that comments were compelled they in bad faith and therefore were made reversal, State, supra, 238 at 20. Md. Clarke

Furthermore, apply I think that there if was error even we prejudice” prejudice” “substantial or “actual as the test. This one-day trial, protracted proceeding. Thus, was a not a it imagination does not stretch the to assume that the words of jurors were fresh the minds of the when they equally important retired to deliberate. It is to note nothing jury following objection by that was said to the jurors logically defense counsel. The could have assumed following from court’s silence the bench conference objection overruled, thereby had suggesting been its approbation of the remarks. by majority,

A number of the authorities cited almost jury argument all with rather opening of which dealt than statements, appear have turned on whether the trial judge following improper issued a curative instruction given here, comment. No such instruction was and under the circumstances of this case that failure alone established prejudice. majority part, As the has noted we said (1960): Contee v. Md. A. 2d 889 out, however, point We “... State’s Attorney obligation making has an to refrain from any hearing remark within the of the which is apt instigate prejudice against likely or point that, accused. We further out while the granting lying or refusal of a mistrial is a matter court, within the sound discretion the trial court, nevertheless, sustaining in addition to misconduct, objection improper to an remark or responsibility also entrusted with further reprimand caution the State’s as the exigencies may require of the situation and to disregard instruct forthwith unwarranted and conduct of prosecuting attorney.” (emphasis 223 Md. at 584 added). nothing prior

I find of our other decisions requirement upon imposes an absolute defense counsel to request impropriety Given curative instruction. judge, tacitly recognized comments, which was upon cast were sufficient objection and motion The failure action. curative responsibility for court retired and it before jury at time properly instruct mistrial, together, constituted grant taken refusal to for a new remand would reverse I discretion. an abuse he concurs Eldridge me to state Judge authorizes trial. opinion. in this

Case Details

Case Name: Wilhelm v. State

Court Name: Court of Appeals of Maryland

Date Published: Sep 26, 1974

Citation: 326 A.2d 707

Docket Number: [No. 277, September Term, 1973.] [No. 283, September Term, 1973.]

Court Abbreviation: Md.