Hill v. State

• Court: Maryland Supreme Court
• Writing for the Court: WILNER.
• Citation: Hill v. State, 355 Md. 206, 734 A.2d 199 (Md. 1999)
• Decision Date: 30 July 1999
• Docket Number: No. 130,130
• Parties: Delton Eugene HILL v. STATE of Maryland.

734 A.2d 199

355 Md. 206

Delton Eugene HILL v. STATE of Maryland.

No. 130, Sept. Term, 1998.

Court of Appeals of Maryland.

July 30, 1999.

Julia Doyle Bernhardt, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Rachel Marblestone Kamins, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ WILNER, Judge.

The question before us is whether, despite concluding that a prosecutor's closing argument was improper and subject to objection, the Court of Special Appeals erred in holding that the denial of petitioner's motion for mistrial based on that impropriety was not preserved for appellate review because the motion was not made until after the jury left the courtroom to deliberate. Our answer to that question, on the facts of this case, is "yes." In his brief, petitioner seeks to enlarge the issue and have us resolve the complaint that the Court of Special Appeals declined to address—that the trial court abused its discretion in denying the motion. As that issue was not raised in his petition for certiorari, however, it is not before us.

BACKGROUND

While conducting surveillance of an area in Prince George's County known for frequent open-air drug sales, Corporal Alvin Sanders observed a station wagon parked on a restaurant parking lot. He saw at least two individuals approach the driver's side and exchange objects with the driver, whom he later identified as petitioner, Delton Hill, but could not see what was exchanged. When Hill drove away, Sanders followed. After observing Hill proceed through a stop sign without stopping, Sanders executed a traffic stop which, because of concern over the conduct of one or more of the passengers in the rear seat of Hill's car, grew into a felony stop, involving backup units. A subsequent search of the car revealed a handgun protruding from under the driver's seat, a brown medicine bottle containing suspected crack cocaine in the front console, and two "rocks" of suspected cocaine on the floor beneath the back seat. According to Sanders, following his arrest, Hill admitted that the gun was his and that he kept it for protection. Hill was charged with transporting a firearm after having been convicted of a felony, in violation of Maryland Code, Article 27, § 291A(b)(1), possession of a firearm after having been so convicted, also in violation of that section, and possession of cocaine. A jury in the Circuit Court for Prince George's County convicted Hill of the first two counts, dealing with the firearm, but was unable to reach a verdict on the cocaine possession charge. The court merged the two convictions and sentenced Hill on the first count to four years imprisonment.

Only two witnesses testified, both called by the State. Corporal Sanders testified as noted above, but said that he made his observations from his cruiser parked some distance—he estimated about 2,000 feet—away, using binoculars. It was just before 9:00 on a February night, although the parking lot area was well-lit from outside lighting. Although defense counsel noted that Sanders had not mentioned Hill's admission regarding the gun in the officer's report, counsel did not otherwise impeach that admission. He did, however, cross-examine Sanders at some length regarding the officer's ability to see, from such a distance—more than the length of six football fields—the drug transactions he claimed to have seen. The State's second witness was Kevin Barnett, a friend of Hill. Barnett said that Hill picked him up, that they drove to the restaurant and went in for about five minutes to buy food, that when they returned to the car several people approached from both the driver's and passenger's side, that two people asked for a ride and got into the car, and that they then left. He said that he never saw Hill in possession of either drugs or a gun and that he saw no drug transactions during the time he was with Hill. Barnett was not a helpful witness for the State.

The issue before us emanates, ultimately, from the insistence of the prosecutor, throughout the trial and over constant objection, on informing the jurors that they had a responsibility to keep their community safe from people like Hill. In a soup to nuts performance, the prosecutor, whether through inexperience or a more disturbing disdain for proper conduct, began his inappropriate remarks with the very first statement he made to the jury and did not end them until the very last statement he made, paying utterly no attention to the numerous objections that were sustained by the court. He commenced his opening statement by noting that his broken foot would mend but wondering if society would mend—"[s]ociety full of people like Mr. Hill who carry guns and drugs." An objection to that remark was sustained. In the next breath, however, he continued that "[o]ne only needs to read the paper to know what that does to our community." An objection to that also was sustained. After very briefly recounting the events leading to the officer's stop of the car, he told the jury, "what happens next is why you are here and why you've been chosen to send a message to protect our community." (Emphasis added.) Objection sustained. Undeterred, he completed his opening statement by telling the jury that "[i]n the end, we're going to ask you to do the just thing, the right thing, the thing that protects all of us and keeps this community safe." Objection sustained. On that performance alone, Hill moved for a mistrial, which the court denied in favor of informing the jury that opening statements were not supposed to be argument and that the jury should not consider anything that the court declared objectionable.

The assault resumed when the prosecutor began his closing argument, the relevant portion of which was as follows:

"MR. JOHNSON: Thank you, Your Honor. Good morning, ladies and gentlemen. Defense counsel yesterday I suppose wanted to make the State feel guilty because we mentioned the community of which you are a part. It is your community, and it is important. What you do here today sends a message, whatever you decide. And make no mistake about it; Delton Hill will go back and tell his cronies and buddies about what is going on here today.

MR. WOOD: Objection, Your Honor.

THE COURT: Overruled. This is argument.

MR. JOHNSON: So, what you do here today is extremely important. Perhaps defense counsel is lucky enough to go home to Potomac or River Road—

MR. WOOD: Objection.

THE COURT: Sustained.

MR. JOHNSON:—but people here in Prince George's County are in crisis. Whether you're in Greenbelt, Accokeek, Adelphi, Largo, it doesn't matter, because Prince George's County is in a crisis.

MR. WOOD: Objection, Your Honor.

THE COURT: Sustained.

MR. JOHNSON: People wonder why we can't get 4-star restaurants here.

MR. WOOD: Objection, Your Honor.

THE COURT: Sustained

MR. JOHNSON: People like Delton Hill. This case is about accountability. Will he be held accountable, or is it okay to say, do what you want? It's your community. No, it's not your community; it's our community. This is your turn to do something about it.

MR. WOOD: Objection, Your Honor.

THE COURT: Overruled."

Defense counsel retorted that he did not live in Potomac, an affluent Washington suburb, but in the District itself, and he suggested that the prosecutor's recurring references to "take back your community" were an indication that he did not want the jury to decide the case on the evidence, because he had no evidence. The prosecutor sent "these subliminal messages" because he did not want to talk about the facts. In rebuttal, the prosecutor responded to counsel's attack on the State's evidence, interspersing his argument with such remarks, to which objections were sustained, as "[b]ut defense lawyer, in his attempt to get him off" and "his buddy, who is still here today cheering him on." Apparently unable to resist the urge, he ended his argument: "What message will you send Delton Hill? Is it, it's your community, do whatever you want ... Or is it your community?"

Hill objected to that last remark, but the objection was not ruled upon. Instead, the court immediately excused the alternate juror, swore the bailiff, and sent the jury to deliberate. The transcript shows that the bailiff was sworn at 11:23 a.m., and that the jury retired one minute later, at 11:24. Counsel promptly, to "complete the record," moved for a mistrial based on the closing argument of the State regarding "sending a message."¹ The court denied the motion, stating as its reason that it had sustained counsel's objections and told the jury that closing arguments were not evidence. That matter took three minutes. The transcript shows that, immediately upon denying the motion, the court went into recess, at 11:27 a.m. The jury sent out a note at 12:02, and the parties and the court gathered briefly to deal with it. After being excused for lunch, at about 12:30, the jury resumed its deliberations and, at some point just before 4:51 p.m., it informed the court that it had reached a verdict on the first two counts, but not on the third.

Hill complained again of the prosecutor's conduct in a motion for new trial, arguing that, unlike the situation regarding the reception of evidence, when the sustaining of an objection precludes the jury from hearing and being tainted by the improper evidence, the damage from the prosecutor's improper remarks was done before an objection could be lodged. He urged that the case was a close one, evidenced in part by the fact that the jury could not agree on whether Hill was in possession of the cocaine found in the car, and he stressed the persistence of the prosecutor's prejudicial conduct and its effect on diverting the jury's attention from the evidence to the "gut level reaction" that "[y]ou...