Eley v. State, 109

Citation288 Md. 548,419 A.2d 384
Decision Date16 September 1980
Docket NumberNo. 109,109
PartiesJonathan Wayne ELEY v. STATE of Maryland.
CourtCourt of Appeals of Maryland

Thomas J. Saunders, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Stephen B. Caplis, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

COLE, Judge.

The question here is whether the trial court erred when it refused to allow defense counsel in closing argument to comment upon the lack of any evidence with respect to fingerprints on the escape vehicle allegedly used by the appellant.

Early in the evening on the date of the events in question, the appellant, Jonathan Wayne Eley, was involved in an altercation with several members of the family of Gary Johnson. A police officer was called to the scene and he dispersed the group and escorted Eley away from the area.

Approximately one hour later, while dancing outside the entrance of a bar near the scene of the altercation, Johnson was shot in each thigh. Moments later a car owned and driven by Ms. Ada Jones, a passerby, was taken from her at gunpoint and driven away by the robber. The next day the car was found abandoned but intact.

Several weeks later appellant was arrested and charged, among other things, with assault with intent to murder Johnson and robbing Ms. Jones of her car with a deadly weapon. Eley was tried by jury in the Criminal Court of Baltimore. Other than Ms. Jones, all identification witnesses were relatives of Gary Johnson. One testified that moments after the shooting she saw the appellant in a car in front of the bar holding a rifle. A second testified that at the time of the shooting, she saw a "large guy running up the street with a rifle in his hand." A third testified that he actually saw the appellant shooting toward the bar. Ms. Jones, was unable to identify the appellant as the one who took her car. Eley denied having been present at the shooting and claimed that after the earlier confrontation with the Johnson family, he went home, packed his clothes, and moved in with friends.

The State neither listed nor presented any witnesses to discuss whether fingerprint tests had been performed on the Jones vehicle. No evidence whatsoever was presented that fingerprints were either present or absent.

Prior to defense counsel beginning closing argument, the court instructed:

All right, Mr. Belsky, you may address the jury. I don't like to-I'm not going to interrupt either one of you if I can help it, but you gentlemen must confine yourselves to the facts you think you have proved and any reasonable inferences therefrom. If you get outside of that, I am going to cut you off.

During his argument defense counsel was proceeding as follows when the court interrupted:

MR. BELSKY: We talked about the testimony of the Dorseys. We talked about all this testimony that was in. Let's talk about the evidence that didn't exist, that didn't happen. We talk about-

THE COURT: You are treading on some dangerous ground, Mr. Belsky. We can be here for three months talking about what didn't happen.

MR. BELSKY: Well, Your Honor-Your Honor, I want to-

THE COURT: You are not going to get a chance to talk about what didn't happen. You must confine yourself to the arguments-your arguments about the evidence that existed.

At the conclusion of defense argument counsel requested to approach the bench and made the following objection:

MR. BELSKY: Your Honor please-

THE COURT: Yes sir.

MR. BELSKY: -I believe it is proper evidence to go into-a proper closing argument to go into there was no fingerprint evidence done to the car. I think that's covered in your instructions and I would like to note my objection on the record.

THE COURT: I don't think it is proper evidence to argue what wasn't. And you got your objection on the record and your objection is duly noted and your objection is overruled.

Appellant was found guilty and sentenced to the custody of the Commissioner of Correction. He appealed to the Court of Special Appeals which affirmed in an unreported per curiam opinion. Eley v. State, No. 1039, September Term, 1978, filed September 17, 1979. This Court then granted Eley's request for a writ of certiorari.

Eley contends that the trial court erred when it refused to allow defense counsel in closing argument to comment on the failure of the State to present fingerprint evidence with respect to the escape vehicle. He asserts that the trial judge went beyond limiting counsel from arguing facts outside the evidence. Rather he contends the trial judge improperly precluded counsel from arguing the logical inferences from the facts and gaps in that evidence.

In Wilhelm v. State, 272 Md. 404, 413, 326 A.2d 707 (1974), we addressed in some detail the permissible scope of closing argument. As a limitation we cautioned "that counsel should not be permitted by the court, over proper objection, to state and comment upon facts not in evidence or to state what he could have proven." Id., citing Esterline v. State, 105 Md. 629, 66 A. 269 (1907). Our examination of the purposes and application of this limitation as well as a consideration of related situations in which comments upon a lack of evidence have been deemed proper leads to the conclusion that the trial court erred in finding the limitation applicable to the case at bar. 1

The broad purpose of the rule is to prevent counsel for either the prosecution or the defense from attempting to introduce to the jury matters which ought not to be considered in arriving at a determination of guilt or innocence. Proscribed are arguments which appeal to passion or prejudice and which "may so poison the minds of jurors that an accused may be deprived of a fair trial." Wood v. State, 192 Md. 643, 652, 65 A.2d 316 (1949); Toomer v. State, 112 Md. 285, 292-93, 76 A. 118 (1910); cf. Contee v. State, 223 Md. 575, 165 A.2d 889 (1960) (prosecutor's remarks during cross examination which were designed to incite racial prejudice against defendant).

The rule is designed also to prevent counsel from suggesting evidence which was not presented at trial thereby providing additional grounds for finding a defendant innocent or guilty. See United States v. Garza, 608 F.2d 659, 663 (5th Cir. 1979). Enforcement of the rule prevents abuses such as where the prosecutor may merely intimate that he knows of additional evidence of defendant's guilt which he did not present during his case, e.g., United States v. Sawyer, 347 F.2d 372 (4th Cir. 1965); Thompson v. State, 318 So.2d 549 (Fla.Dist.Ct.App.1975); Annot., 90 A.L.R.3d 646 (1979), or where the prosecutor expressly argues that certain events did or did not happen when there is no evidence in the record to support such statements. For example, in United States v. Latimer, 511 F.2d 498 (10th Cir. 1975), a bank robbery case, there was testimony by two tellers that they had activated the bank's alarm and camera system during the robbery. Yet, during trial no films were introduced nor was any explanation given for the lack of production. In closing argument, the appellant's counsel pointed to this omission and argued the inference that the film was not produced because it did not identify appellant. In his rebuttal argument, the prosecutor responded that the films were not shown because the camera had malfunctioned. Objection by appellant's counsel was overruled.

On appeal the circuit court first stated that defense counsel's argument for an adverse inference was proper. It then held that the statements of the prosecutor were improper as they went outside the record and referred to facts which could not be proven. Moreover, such comments put the personal knowledge and belief as well as the credibility of the attorney on the line. For these reasons, the court reversed the conviction and granted a new trial. Accord, People v. Beier, 29 Ill.2d 511, 194 N.E.2d 280 (1963).

Perhaps a more cogent reason for enforcing the rule is that arguments of counsel which are outside the record are improper because they allude to sources which are not subject to cross examination and cannot be tested for reliability. Permitting such arguments denies the defendant the right to confront his accusers.

Turning to the instant case, we find that permitting defense counsel to argue that the State's unexplained failure to produce fingerprint evidence should permit the adverse inference that the evidence would have been unfavorable to the State does not present the danger of the kinds of abuses which the rule is designed to prevent. First, the comments which the defense counsel sought to make were in no way designed to appeal to the passion or prejudices of the jury. More important, they were not intended as a statement of fact or calculated to serve the purpose of evidence. Rather, the excluded comments went to the strength of the prosecution's evidence, or more specifically, to the lack of evidence. It is the State which has the burden of producing evidence sufficient to convince the jury beyond a reasonable doubt that the defendant is guilty.

Here the only witnesses who identified Eley were relatives of the victim who, in light of the previous conflict between the victim's family and Eley, may have had a motive for fingering Eley as the assailant. The driver of the vehicle in question could not positively identify the appellant; however, the State had available to it a better method of identification-fingerprint evidence. This Court has taken judicial notice of the high degree of reliability accorded to such identification. Murphy v. State, 184 Md. 70, 85-86, 40 A.2d 239 (1944); see generally Reed v. State, 283 Md. 374, 391 A.2d 364 (1978) where both the majority and dissenting opinions agree that fingerprint evidence is reliable. Yet the State failed to produce any such evidence...

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