Campbell v. State

• Decision Date: 10 December 1985
• Citation: 501 A.2d 111,65 Md.App. 498
• Parties: Robert Lewis CAMPBELL and Miriam Theresa Campbell v. STATE of Maryland. 350 Sept. Term 1985.
• Court: Court of Special Appeals of Maryland

Page 498

65 Md.App. 498

501 A.2d 111

Robert Lewis CAMPBELL and Miriam Theresa Campbell v. STATE of Maryland.

350 Sept. Term 1985.

Court of Special Appeals of Maryland.

Dec. 10, 1985.

Michael R. Braudes, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellants.

Ann E. Singleton, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Baltimore, John L. Scarborough, State's Atty. for Cecil County and Thomas L. Kemp, Asst. State's Atty. for Cecil County, on brief, Elkton), for appellee.

Submitted before WILNER, ROSALYN B. BELL, and KARWACKI, JJ.

ROSALYN B. BELL, Judge.

Robert Lewis Campbell and Miriam Theresa Campbell were convicted by a jury in the Circuit Court for Cecil County of child abuse and assault and battery. ¹ Robert L. Campbell was committed to the custody of the Division of Correction for twelve years for the child abuse conviction and twelve years concurrent for an assault and battery conviction. Miriam T. Campbell was sentenced to three years for the conviction of child abuse and three years concurrent for an assault and battery conviction. On appeal appellants contend that:

1. The court erred in permitting improper closing argument by the prosecutor;

2. The court erred in admitting into evidence extrajudicial statements by them;

3. The court erred in excluding evidence that appellant Robert Campbell caught the complaining witness with marijuana in her room;

4. The court erred in excluding documentary evidence offered by them; and 5. They are entitled to merger of their assault and battery convictions into their child abuse convictions.

The jury found the slightly retarded, psychotic teenage victim was neglected and abused, as well as assaulted and beaten, by her father and stepmother, Robert and Miriam Campbell.

I. Prosecutorial Misconduct At Closing Argument

Appellants suggest that the court committed reversible error in refusing "to remedy the prosecutor's highly improper remarks...." We do not agree.

During closing argument, the following colloquy occurred:

"[ASSISTANT STATE'S ATTORNEY]: And the last thing, ladies and gentlemen, imagine for a moment that someone has said something about [sic] that's not true. Just imagine that for a moment. Put yourself in that place. What's your reaction? Is your reaction to hang your head and cry, or is your reaction to stand up and say, 'That's not true?' It's interesting to me to note that while Mrs. Campbell has been here in this Courtroom for four days, she's sat in that corner with her head buried in her hand crying, crying every day, every single day. Is that a normal response? I ask you. Imagine that's you.

[APPELLANT'S TRIAL COUNSEL]: I object. Is this the State's case against the Campbells, that she's crying?

THE COURT: He can make mention of it.

[APPELLANT'S TRIAL COUNSEL]: It's been a very [sic] hardship on the woman, Your Honor.

THE COURT: Let's cut out the speeches. He's just commenting on it.

[ASSISTANT STATE'S ATTORNEY]: I submit to you her reaction is because in her heart she knows it's true. She knows it's true."

Appellants take issue with these remarks.

- Impropriety -

Wide latitude is given counsel in closing argument, Samson v. State, 27 Md.App. 326, 341 A.2d 817 (1975), and unless the jury was misled or influenced to the prejudice of the accused, the remarks will not justify reversal. Couser v. State, 36 Md.App. 485, 374 A.2d 399 (1977), aff'd. 282 Md. 125, 383 A.2d 389 (1978).

Generally, it has been held improper to remark on the personal appearance of an accused, except where identity is in issue or where the remark is with respect to the accused's appearance while testifying. 23A C.J.S. Criminal Law § 1102 (1961). The circumstances and the nature and language of the comment, however, may render the remark an exception to the general rule. Id.

In the case before us, the identity of appellants was not questioned. While both appellants took the stand, the contested remarks were addressed solely to appellant Miriam Campbell. Even if we were to find the comments constituted error, they did not affect appellant Robert Campbell's right to a fair trial. Accordingly, he is not entitled to a reversal.

With respect to appellant Miriam Campbell, we hold that while the State's comments were inappropriate, they were not so improper as to mandate reversal. When this appellant testified in her own behalf, she placed her credibility in issue. It was thus proper for the State to posit before the jury any plausible inferences derived from her presence on the stand, including evidence of demeanor.

Appellants refer us to numerous decisions in other jurisdictions where courts have ruled on the impropriety of counsel's remarks in closing argument. See People v. Peete, 54 Cal.App. 333, 202 P. 51 (1921); Reed v. State, 197 So.2d 811 (Miss.1967); Brush v. Laurendine, 168 Miss. 7, 150 So. 818 (1933); Bestor v. State, 209 Ala. 693, 96 So. 899 (1923); State v. Murdock, 183 N.C. 779, 111 S.E. 610 (1922); Downie v. Burke, 408 F.2d 343 (7th Cir.1969), cert. denied, 395 U.S. 940, 89 S.Ct. 2011, 23 L.Ed.2d 468 (1969); State v. Ferrone, 97 Conn. 258, 116 A. 336 (1922); Cole v. State, 104 Tex.Cr.R. 533, 286 S.W. 204 (1926).

Not only are we not bound by the decisions in those jurisdictions, but we find these cases inapposite to this matter. The challenged comments in those cases either improperly made reference to the accused's failure to testify (see Reed v. State, supra; People v. Peete, supra, Bestor v. State, supra, State v. Murdock, supra, State v. Ferrone, supra ), or were flagrantly abusive personal insults going to the accused's physical qualities rather than credibility. (See Cole v. State, supra (improper argument to jury that the defendant "has not a good face. God Almighty has stamped in his face what he is; time, and what he has been in his life, are written there in lines that will never be erased."); see State v. Murdock, supra (improper for counsel to address the jury that "I do not know where I have seen a more typical blockader. [manufacturer of stilled liquor] Look at him, his red nose, his red face, his red hair and moustache. They are the sure signs."); see Brush v. Laurendine, supra (after objection sustained, counsel's repeated characterization of opposing witness as "sleek, fat, pompous Dr. Blount ... you saw how he strutted" might be error but issue not preserved.); see Downie v. Burke, supra (prosecutor's final summation to jury referring to defendant as a "big ape" and "gorilla" was a slight error not affecting overall constitutional fairness of trial.)

The comments in this case addressed the personal behavior of an accused who took the stand rather than any physical characteristics over which she had no control. Reference to the former may be inappropriate, while reference to the latter is clearly improper. 23A C.J.S. Criminal Law, supra. The court did not err in permitting this line of argument before the jury.

- Prejudice -

Assuming, arguendo, we deem the remarks improper, it is evident that appellant failed to demonstrate that she was unfairly prejudiced by the challenged comments. Couser v. State, supra. The aforequoted colloquy occurred in open court in the presence of the jury. Appellant's counsel, after objection, pointed out to the court not only his position that her crying was irrelevant to the issues in the case, but drew for the jury the equally plausible inference that her tears were a result of the hardship of the trial. In light of the foregoing, no prejudice was shown.

II. Admissibility of Extrajudicial Statements

Appellants contend that the court erred in permitting Dora Temple to testify as a rebuttal witness for the State. At trial, Temple was called by the State. Before she took the stand, however, the court determined that Temple, a social worker who questioned appellants at the State Police Barracks regarding the victim's allegations, would not be permitted to testify in the State's case-in-chief about incriminating statements made to her by appellants. The court ruled that because no Miranda warnings were given to appellants prior to questioning, and because their statements were not given to the defense prior to trial under a discovery request, Temple's testimony could be used only for impeachment purposes. The State subsequently called Temple as a rebuttal witness. Over objection, the court allowed Temple to testify regarding appellants' inculpatory statements.

Appellants now contend that the court erred in allowing this testimony. They mount a two-fold argument. First, they argue that the evidence was improper rebuttal. Second, they argue that the statements were admitted in violation of the discovery rules. Appellants' contentions are without merit.

- Rebuttal -

Temple's testimony was proper rebuttal testimony. What constitutes rebuttal testimony lies within the sound discretion of the trial court and that ruling should be reversed only where it is shown to be "both manifestly wrong and substantially injurious." Huffington v. State, 295 Md. 1, 452 A.2d 1211 (1982). Evidence which explains, or is in direct reply, or is a contradiction of matters brought into the case by the defense is rebuttal evidence. State v. Hepple, 279 Md. 265, 368 A.2d 445 (1977).

The victim testified that back rubbing was the prelude to her sexual molestation. Appellant Miriam Campbell retorted on direct examination that her stepdaughter had not rubbed appellant Robert Campbell's back. On rebuttal, Temple related that appellant Miriam Campbell had stated the girl told her that she had rubbed her father's back. Temple, in rebutting the father's denial that his daughter had rubbed his back, recounted that appellant Robert Campbell said that the child rubbed his back when his wife was not home. This evidence was in direct contradiction to appellants' version of the facts and tended to impeach their credibility. The statements were properly admitted.

- Discovery -

The use of Temple's...